All Administrative Law Posts

 

All administrative law posts from Tollefsen Law

 

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Franchisors Imputed Employer

Franchisors May Be Employees for Unemployment Insurance Purposes. Issue Preclusion in Administrative Law Franchisor Imputed Employer of Franchisee’s Employee Employment Dep’t v. Nat’l Maint. Contrs. of Or., Inc., 226 Ore. App. 473, 204 P.3d 151, (Or. Ct. App. 2009) (March 19, 2009) National Maintenance Contractors of Oregon, Inc. (NMC) franchisees-janitors performed janitorial services at buildings owned by third parties. The question was whether the franchisees’ s employees were NMC’s employees for purposes of unemployment insurance taxes. NMC is a janitorial franchisor that enters into agreements with building owners to provide janitorial services and informs the owners that the services will be provided by its franchisees. Although NMC often enters into a contract for an entire building, it generally does not assign the building to one franchisee but instead splits identifiable parts of the building among various franchisees. The cost of an NMC franchise is determined by the volume of monthly billing for the accounts that NMC assigns to the franchisee. NMC does not guarantee that the franchisee will receive a specific account, and all accounts serviced under the franchise must be serviced pursuant to an agreement between the building owner and NMC. Franchisees are not permitted to enter into direct contractual relationships with the building owners-a prohibition that continues for 12 months after the termination of a franchise. All franchisees are required to sign a written franchise agreement, and each agreement contains essentially the same terms. Under the agreement, it is contemplated that building owners will pay NMC directly for the janitorial services. NMC then deducts a royalty, an “office management fee,” and a liability insurance premium. If a...

Voluntary Reduction in Force

Loophole Created in Unemployment Law for Big Business to Save State Money Verizon Nw., Inc. v. Employment Sec. Dep’t, 164 Wn.2d 909, 194 P.3d 255, 2008 Wash. LEXIS 1040, 28 I.E.R. Cas. (BNA) 516, Unemployment Ins. Rep. (CCH) P9044 (Wash. 2008), (Wash. Oct 23, 2008) (NO. 81024-9) If a small business downsizes and lays-off employees, it generally has no choice but to terminate specified employees. Big business can tell employees that they are within the class of employees being considered for lay-off and ask for voluntary participation in a force reduction program. The employment security commissioner has provide rules governing whether these “voluntary” participants qualify for unemployment benefits or have been separated for a disqualifying reason: You will not be considered to have been separated from employment for a disqualifying reason when: (a) Your employer takes the first action in the separation process by announcing in writing to its employees that: (i) The employer plans to reduce its work force through a layoff or reduction in force, and (ii) That employees can offer to be among those included in the layoff or reduction in force; (b) You offer to be one of the employees included in the layoff or reduction in force; and (c) Your employer takes the final action in the separation process by accepting your offer to be one of the employees included in the layoff or reduction in force, thereby ending your employment relationship. WAC 192-150-100(1). In this case, Verizon argued that it did not take the final step because it gave the employees the right to rescind their acceptance of the force reduction program. No...

Unfairness in Consumer Protection Cases

 by Bob Lipson State and federal statutes prohibit unfair and deceptive business acts and practices.1 Washington’s Consumer Protection Act, R.C.W. 19.86 et seq., passed in 1961, can be enforced either by the attorney general acting on behalf of all state consumers, or by private counsel acting on behalf of individual or class clients.2 The Federal Trade Commission Act, 15 U.S.C.§ 41-58, passed in 1914, is enforced exclusively by the Federal Trade Commission (FTC).3 While unfair behavior and deceptive behavior are both prohibited, historically most consumer protection actions have focused on deception.4   Few unfairness cases are brought.  Although most complaints allege both unfair and deceptive business practices, despite this form of pleading, most cases are usually litigated as deception cases. What deception means is firmly rooted in case law.  Judges, juries and lawyers have little trouble understanding and applying it.  In contrast, the meaning of unfairness is less certain, although it is not so uncertain as to be unconstitutional.5 The purpose of this article is to explore what unfairness means in the context of consumer protection cases.  The article will look at historical development of the concept at the FTC, examine types of unfairness cases brought by the FTC over the years, review significant state and federal cases, and reflect on how related concepts might inform our understanding. The FTC’s First 50 Years: 1914-1964 Congress passed the Federal Trade Commission Act in 1914. The act’s original language outlawed “unfair methods of competition.”  Passed primarily due to Congress’s dissatisfaction with judicial interpretation of the anti-trust provisions in the Sherman Act, which Congress thought the courts were interpreting too restrictively, Congress wanted...