Franchises Need To Protect Themselves From Increased Sexual Harassment And Cyber Security Claims

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Our friend and franchise expert Ed Teixeira interviews Peter R. Taffae, MLIS, CFE and Managing Director Executive Perils, Inc. on the topic of Cyber Security Claims and Sexual Harassment claim that all employers need to protect themselves against.This important topic has faded from the mainstream ews media but remains a real problem that employers need to focus on…

Franchises Need To Protect Themselves From Increased Sexual Harassment And Cyber Security Claims

By Ed Teixeira – Chief Operating Officer of Franchise Grade

After hitting a two-decade low in 2017, sexual harassment complaints to the Equal Employment Opportunity Commission increased by more than 12 percent from last year. The federal agency has also been aggressive with litigation this year, filing 41 sexual harassment lawsuits so far, up from 33 in 2017. At the same time, cyber-crimes which involve the theft of personal information has cost some companies millions of dollars in damages to its reputation and from monetary claims.

Employer Liability Claims Increase

Over the course of this year, stories of sexual harassment have dominated the headlines. In what USA Today dubbed the “Weinstein Effect,” various sized companies have witnessed employees take part in the #Me To movement. This increased focus on sexual harassment has created a surge in protests, discrimination lawsuits, and government investigations, with almost no industry being immune, including a recent demonstration against McDonald’s franchise locations. Regardless of whether a sexual harassment allegation has merit, these claims can cause a company significant damage to its brand and sales. Seven in 10 human resource professionals said they believe sexual harassment complaints at their workplaces will likely be “higher” or “much higher” in 2018 compared to previous years.

A poll by the Human Resource Certification Institute found that “63 percent of HR professionals said that acts of sexual harassment “occasionally” or “sometimes” occur in their workplaces and 30 percent said that such acts “frequently” occur. Only seven percent said that such acts “almost never” or “never” occur.” The trend toward more sexual harassment lawsuits appears to continue as the EEOC increases efforts to crack down on sexual harassment. The EEOC has launched online access for employees to file harassment charges from their homes, with the EEOC.

Employment-related risks can represent the most damaging exposure to a franchiser. Claims involving sexual harassment, wrongful termination or discrimination, from a current or former employee can potentially cause irreparable damage to a franchise brand and reputation resulting in significant financial cost.

To gain more insight into employer liability and especially sexual harassment claims I spoke with Peter R. Taffae, MLIS, CFE and Managing Director Executive Perils, Inc. In 2014 they introduced a management liability policy, FranchisorSuite®, designed for the unique needs of Franchisors.

Q. How extensive are employer liability claims?

A. Companies of all sizes and industries have been affected by a surge in employment-related litigation and rising legal damage awards.

Q. What can be done to mitigate those risks?

A. Be sure that franchisers, franchisees and their employees are properly trained to understand the risks of sexual harassment, unlawful terminations, and discrimination claims. Have the proper procedures and protocols in place and have financial protection.

Q.What does the future hold for sexual harassment claims?

A. The threshold has been raised for what is appropriate in the workplace. This means that the expectation for proper employment practices is higher. Some experts believe that it will take 10 to 15 years to reverse the trend as current middle age retirees are replaced by today’s younger generation.

Q. Any other threats that franchises face?

A. One area related to the franchise industry that doesn’t receive a lot of coverage is cybersecurity. Every state has primary notification laws, which that when there is a breach of a customer’s personal data, the company or franchiser must notify every customer. In addition, there is no statute of limitations regarding these crimes. For example, if I purchased a meal at a franchise location 10 years ago and their system was hacked, and my personal information was stolen, that franchise is liable.

Franchise restaurants process so many credit cards and have the extensive point-of-sale equipment, that they are vulnerable to data theft. Websites, Wi-Fi and digital kiosks represent additional threats. Any franchise which does any of the following is at risk for a cyber-attack; Accepts credit cards, handles or views private information of employees or customers electronically, has Wi-Fi or conducts a portion of their business online.

It’s important that each component of the franchise industry be prepared to protect themselves from the threat of employer liability and cybersecurity claims.
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About the Author:
Ed Teixeira is Chief Operating Officer of Franchise Grade and was the founder and President of FranchiseKnowHow, L.L.C. a franchise consulting firm. Ed has over 35 years’ experience as a Senior Executive for franchisors in the retail, healthcare, manufacturing and software industries and was also a franchisee. Ed has consulted clients to franchise their existing business and those seeking strategic solutions to operational, marketing and franchise relations issues. He has transacted international licensing in Europe, Asia, and South America. Ed is the author of Franchising from the Inside Out and The Franchise Buyers Manual and has spoken at a number of venues including the International Franchise Expo and the Chinese Franchise Association in Shanghai, China. He has conducted seminars, written numerous articles on the subject of franchising and has been interviewed on TV and radio and has testified as an expert witness on franchising. He is a franchise valuation expert by the Business Brokerage Press. Ed can be contacted at [email protected]

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SUBWAY – A Bite Of The Sandwich From Both Ends?

According to a NY Times interview with Ms. Husler, she said her boss tasked her with specific instructions to find things wrong. “I was kind of his hit man,” she said. Ms. Husler went on to say that Mr. Patel considered his own interests when determining which stores were to be sent into arbitration.

A Bite Of The Sandwich From Both Ends?
By Gary Occhiogrosso – As seen in Forbes.com

Like a “Player/Manager” of a baseball team, there are often conflicts that never seem to settle and resolve. The recent news that Subway, and it’s “Development Agents” are allegedly “pushing out” other smaller Subway operators is not unlike the player/manager deciding to bench a good teammate so he can get more playing time. As a 35-year veteran of the franchised restaurant industry, I know I am not alone in my opinion. You can’t play both sides of the fence then expect not to run up against motives that may sometimes appear to be questionable.
Subway has grown to its behemoth size by employing a program whereby some franchisees are also sales agents and operational support personnel for the parent company. They are titled “Development Agents.” On the surface, it seems like a good idea. It seems to make sense to appoint brethren franchisees to help build out territory by recruiting new owners and then assist them in setting up their shops and growing their business.

Cutting the Sandwich Business Into Pieces
Subway divides its roster of sandwich shops into more than 100 regional territories. These territories are controlled in part by a development agent. The development agents are responsible for recruiting new franchisees and finding & approving buyers for existing shops. As compensation for this sales effort, they receive a portion of the upfront franchise fee for a new shop or transfer fee if it’s the sale of a current location.

Also, for a share of the company’s royalty fee, they are obligated to visit shops and conduct shop audits focused on operational compliance. This inspection task is carried out through the use of inspectors — known as field consultants. The question of conflict comes up when you consider that many of the development agents are also franchisees themselves. As this is the case, it’s hard to separate the idea of running their own shops, and be responsible for inspecting shops which directly compete with them. The question of motive grows more plausible when you add in the fact that these development agent’s shops are self-inspected by their own paid staff members.

Is Rapid Growth Always a Good Thing?
Consider the history of Subway’s voracious appetite for growth and the lack of exclusive territories granted to their franchisees. In my opinion, all franchised units regardless of the brand, should have a protected territory. These protections help prevent the parent company from encroaching on the trade area of an existing operator and hurting their sales. This protection is not the case with many Subway franchises. There is not exclusive territory protection. The location of a new shop is at the discretion of the company. So it should come as no surprise that the brand has overdeveloped in certain territories. These saturated markets are at a point of sales cannibalization. Mr. Deluaca’s dream of 50,000 Subways has now left some franchisees feeling like their local development agents are pushing them out of business to gain market share for themselves.

Case in point, as reported in the NY Times, Subway franchisee Manoj Tripathi felt that someone had a vendetta against him. The 20-year franchisee noted that each time the inspector arrived, she would find more and more minor infractions. Things like fingerprints on the doors or vegetables cut incorrectly or the wrong soap in the restrooms. On one visit, Rebecca Husler, the Subway inspector who worked for Chirayu Patel, a Development Agent in the Northern California region, noticed that a single light fixture needed a new bulb. Mr. Tripathi replaced the bulb before she left; nonetheless, it was a violation. Mr. Tripathi wasn’t overreacting to his feeling of being set up to fail, as it turns out within a year he was terminated, and he lost his shop.

According to a NY Times interview with Ms. Husler, she said her boss tasked her with specific instructions to find things wrong. “I was kind of his hit man,” she said. Ms. Husler went on to say that Mr. Patel considered his own interests when determining which stores were to be sent into arbitration. Mr. Patel made it “very clear that his stores were to pass” and that “the people he wanted out of the system were to fail out of the system.” she said in the interview. The light bulb incident gave her pause to say, “We’re ruining these people.”

Systemic or Isolated?
One of the people on the company side of this debate is Don Fertman. Mr. Fertman is Subway’s chief development officer and a veteran of the company for 38 years. He claims development agents owning restaurants helps give them “a better understanding of all aspects of owning a small business.” He went on to explain that the company reviews the agents’ work and expects them to uphold ethical standards, dealing with violations “on a case-by-case basis.” He continued by saying, “Our business development agents are well-respected members of our business community,” he said. “And when we hear these allegations, I would say that they are false.”

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My takeaway is not this stunning revelation of alleged unfair business practices, but instead that it’s taken this many years to consider that Development Agents competing with other franchises might abuse their position when auditing competing shops in their region. As a former franchisor and development consultant, I do see merit for brands to use the development agent system. I believe there needs to be a robust system of oversight by the parent company to prevent abusive business practices by development agents. This is not to say that Subway corporate hasn’t developed a system of checks and balances, but the allegations from its franchise community leave one to wonder how vigorously it is employed.

Given the number of Subway units in the USA, this may only be the beginning from Subway franchisees who feel Subway is taking a bite out their business.