In 1982, a trio of children and their father had no grandma but desperately needed one. So, according to IMDB, they got “a very special robot grandmother to assist them.” It was futuristic fun and all the hijinks that accompany that sort of thing but, at its core, this was a simple clash of incompatible laws.
The Laws of Nature said “No Grandma,” but the Laws of Biomedical Engineering as Modified by 1980s Television Science Fiction said “Yes!”
This week’s post is also about what happens when two laws are incompatible, but we’ll steer clear of trying to figure out which part of grandma’s backside in the TV ad has father smiling in that way that makes me uncomfortable.
In Massachusetts, a group of 7-Eleven franchise owners sued 7-Eleven, Inc., claiming they should have been classified as employees of 7-Eleven, Inc. under the Massachusetts Independent Contractor Law. The Mass IC law is the strictest in the nation (take that, California!) and imposes an ABC Test that lacks the exceptions enjoyed by a select few Golden Staters.
Under the Mass IC law, “an individual performing any service” for another is presumed to be an employee. To avoid that conclusion, the alleged employer must prove all three parts of a strict ABC Test:
(A) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(B) the service is performed outside the usual course of the business of the employer; and
(C) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
The plaintiffs claimed that they were employees under Part A of the Mass IC Law because 7-Eleven exerted control over how they ran their stores.
But 7-Eleven said the type of control exerted was the type of control required under the Federal Trade Commission’s Franchise Rule and the 154-page Compliance Guide that instructs franchisors on what they need to do.
A federal district court agreed with 7-Eleven. The court ruled that the Mass IC Law and the FTC’s Franchise Rule were incompatible when it came to franchising, and the federal rule carries the day.
Other courts have agreed, even in California, that when the type of control exerted is required under another law, that is not the type of control that converts someone to an employee. The “required control” argument can be a powerful defense to a claim of independent contractor misclassification.
There has been a lot of concern in the franchising world that the increased adoption of ABC Tests and other laws designed to convert everyone into an employee may put the entire franchise model at risk. This decision, while certain to be appealed, should be somewhat reassuring to franchisors that the franchise model can survive, even in the face of the strictest of ABC Tests.
Meanwhile, The Electric Grandmother was nominated for a 1982 Primetime Emmy for Outstanding Children’s Program, and Maureen Stapleton went on to do voiceover for the non-electric grandmother in Snow Cat, showing her versatility in playing both electric and non-electric grandmothers.
Snow Cat, according to IMDB, was a “series of children’s videos with awesome original songs about awesome trucks.” In case you needed something to watch tonight.
© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.