with the contractual relations of a competitive staffing business. Granting Express
Services' motion for summary judgment, the court pointedly observed:
The franchise relationship is very different in nature from the traditional master/ servant
relationship applicable to a contract for employment. The franchisor must exert some
degree of control over the franchisee to protect its trade or service mark. As a
consequence, the majority of courts look to whether the franchisor exercised control
over the day-to-day operations of the franchisee or controlled through the franchise
agreement the instrumentality which caused the harm….
[A]pplying strict liability to a franchisor for the acts of its franchisee would be unfair
because the franchisor's control usually does not consist of routine, daily supervision
and management of the franchisee's business, but, rather, is contained in contractual
quality and operational requirements necessary to the integrity of the franchisor's trade
or service mark.[214]
For other cases in which courts granted summary judgment to franchisors holding that
they could not be vicariously liable for the acts, errors, or omissions of its franchisees
unless they exercised sufficient control over their day-to-day operations, see
Schoenwandt v. Jamfro Corp.,[215] Lewis v. McDonald's Corp.,[216] Folsom v. Burger
King,[217] Helmchen v. White Hen Pantry, Inc.,[218] Schlotzsky's, Inc. v. Hydel,[219]
and Hart v. Marriott International, Inc.[220]
Courts adjudicating Title VII actions have often reached the same result. In Matthews v.
International House of Pancakes, Inc.,[221] employees of an IHOP franchise brought an
action against both the franchisee and IHOP itself complaining of racial and gender
discrimination. IHOP moved to dismiss the complaint or, in the alternative, for summary
judgment. Granting IHOP's motion, the court noted that "none of the IHOP entities ever
had any day-to-day authority or control over the management or personnel [of the
franchised restaurant]."222 A similar result was reached in Bricker v. R&A Pizza, Inc.,
[223] in which female employees of a franchised Domino's restaurant brought a Title VII
action against both the franchisee and Domino's itself. Granting Domino's motion to
dismiss, the court observed that "a franchisor is not the employer of employees of the
franchisee" and that under either the "single employer test" or the "joint employer test,"
the plaintiffs in this action failed to advance factual allegations sufficient to withstand
Domino's motion to dismiss.[224]
Another recent Title VII decision drives home the distinction between a franchisor
imposing standards upon its franchisees and such standards giving rise to the
franchisor being the "joint employer" of its franchisees' employees. In Courtland v.
GCEF-Surprise, LLC,[225] a case in which a bartender and server at a franchised
Buffalo Wild Wings restaurant sued both the franchisee and Buffalo Wild Wings alleging
sexual discrimination, harassment, and retaliation, the court granted franchisor Buffalo
Wild Wings' motion for summary judgment, applying the "economic reality test" and
holding:
