Latest / Choppin’ It Up by Bloomberg Intelligence / California's Fast Act to Raise Restaurant Costs
Transcript
- 0:00Speaker 1: All right, welcome to Chopping It Up Episode five. I'm
- 0:02Speaker 1: your host, Michael Halen, the senior restaurant and food service
- 0:05Speaker 1: analyst at Bloomberg Intelligence. Today I'm joined by Riley Loguson
- 0:10Speaker 1: and Jonathan Sack to discuss the impacts of the Fast
- 0:12Speaker 1: Act and unionization on the restaurant industry. So, Riley is
- 0:17Speaker 1: a shareholder in the chair of the Global Restaurant Industry
- 0:19Speaker 1: Group at Greenberg traw Rig, and Jonathan is also a
- 0:24Speaker 1: shareholder at the firm. So thanks for joining me, gentlemen,
- 0:27Speaker 1: Thank you for having us. Mike. Thanks, Mike, great to
- 0:30Speaker 1: be here. Sure, I think so. For those of you
- 0:34Speaker 1: that aren't familiar, I have to very highly respected West
- 0:39Speaker 1: Coasts lawyers to help kind of flesh these topics out. Uh.
- 0:44Speaker 1: So we're gonna start with the Fast Act. So, from
- 0:47Speaker 1: what I understand, the fast Fast Act scaled back. So
- 0:51Speaker 1: can you give us a quick rundown about the version
- 0:53Speaker 1: that was passed in California on August twenty nine, And
- 0:57Speaker 1: you know what what should concern quick, sir? Of its
- 1:00Speaker 1: restaurants owners and franchise wars most Yeah, great, great question, Mike. Yes,
- 1:07Speaker 1: some significance. Significant amendments were made to the Act that
- 1:11Speaker 1: came down last week. I think, taking a step back,
- 1:15Speaker 1: it's important to look at this from a broad perspective
- 1:18Speaker 1: that the Fast Act, as well as the unionization efforts
- 1:21Speaker 1: that were currently seeing around the company are a part
- 1:24Speaker 1: of a longstanding, well funded, and well coordinated strategy led
- 1:30Speaker 1: by the unions to change the landscape of labor in America.
- 1:35Speaker 1: And so when we look to the history of this
- 1:38Speaker 1: uh starting with the Fight for fifteen movement that began
- 1:42Speaker 1: around two thousand and twelve and two thousand thirteen, we
- 1:45Speaker 1: can see the origins of that with the fast food
- 1:48Speaker 1: walkouts in New York and other cities, which very quickly
- 1:51Speaker 1: led to significant minimum wage increases and acted in a
- 1:56Speaker 1: number of cities around the country, including almost immediately Los Angeles,
- 2:00Speaker 1: San Francisco, Portland, Seattle, New York, and others. Others have followen.
- 2:05Speaker 1: So this is part of a strategy. It should come
- 2:07Speaker 1: as no surprise to those that have been following the
- 2:09Speaker 1: industry that these efforts with both the Fast Act and
- 2:12Speaker 1: unionization are related and well coordinate and part of an
- 2:16Speaker 1: overall strategy, like I said, for groups to change the
- 2:22Speaker 1: face of labor in America, starting with restaurants and looking
- 2:27Speaker 1: obviously at other industries. So you know, it's it's important
- 2:30Speaker 1: to have that big picture. So not just viewing this
- 2:33Speaker 1: in isolation and not just thinking that this applies only
- 2:36Speaker 1: to fast food restaurants, because it does not. Um the
- 2:40Speaker 1: Fast Act itself. Fast food, you know, has been an
- 2:42Speaker 1: easy target, as unions found with a Fight for fifteen
- 2:45Speaker 1: because people generally have a perception about quote unquote fast
- 2:49Speaker 1: food and their labor practices. And when they're able to
- 2:53Speaker 1: bring out employees and tell stories about how they can't
- 2:57Speaker 1: uh you know, make enough you know to know living
- 3:00Speaker 1: age and so forth, and very emotional and in uh
- 3:03Speaker 1: in the public connects with that understandably. And so the
- 3:06Speaker 1: story has been uh hated through the Fast Act that
- 3:11Speaker 1: the workers in California who work in the quote unquote
- 3:14Speaker 1: fast food industry need enhanced protection, and that's what this
- 3:19Speaker 1: Act is professing to provide, you know, by the creation
- 3:23Speaker 1: of a council uh that will oversee uh, you know,
- 3:27Speaker 1: labor practices you know, in the state of California, an
- 3:30Speaker 1: unelected body that will that will do so comprised in
- 3:33Speaker 1: folks that as a part of an amendment to the
- 3:36Speaker 1: Fast Act, are going to be appointed by the governor.
- 3:39Speaker 1: I think it's also important to note that in the
- 3:42Speaker 1: last couple of years, especially since the pandemic, wages and
- 3:45Speaker 1: benefits and restaurants in fast food around the country have
- 3:48Speaker 1: probably never been hired for employees, given UH the lack
- 3:54Speaker 1: of people returning to the workforce and competitive nature. But nevertheless,
- 3:58Speaker 1: you know, this is the premise upon which the Act
- 4:00Speaker 1: been created and promoted and passed by the legislature UH
- 4:06Speaker 1: this week. So the most significant amendment that was made
- 4:09Speaker 1: to the fast Act was the removal a joint employer
- 4:12Speaker 1: liability and and so there were there were two big issues,
- 4:15Speaker 1: and there's the establsion of the Council which remains, but
- 4:18Speaker 1: joint employer liability was the one that was the most
- 4:22Speaker 1: significant concerned especially to the franchise restaurant and industry, because
- 4:27Speaker 1: essentially what those provisions said that was that the franchise
- 4:32Speaker 1: award would be responsible for labor code violations committed by
- 4:37Speaker 1: their franchise eads, amongst other things, which essentially turned the
- 4:42Speaker 1: whole notion and rule of the separation of liability between
- 4:45Speaker 1: franchises and franchises for employment related matters absolutely upside down.
- 4:51Speaker 1: And so from a franchise or perspective, UH, it would
- 4:55Speaker 1: be very difficult to want to continue doing business in
- 5:00Speaker 1: California under that construct, given the risk of being liable
- 5:05Speaker 1: for labor code violations by franchise e for things that
- 5:08Speaker 1: the franchise arguably has no control over. Now, under the law,
- 5:12Speaker 1: if a franchise or exercises a certain amount of control
- 5:16Speaker 1: over the labor practices of a franchise e and actually
- 5:18Speaker 1: stepped into the role of being a joint employer, that
- 5:21Speaker 1: could be labinility. And that's that's long standing law. But
- 5:24Speaker 1: typically the franchise laws UH require the franchise us to
- 5:28Speaker 1: be responsible for uh, you know, complying with local law
- 5:32Speaker 1: and in finding their own council to comply with with
- 5:36Speaker 1: local laws. And so in order to you know, established
- 5:40Speaker 1: this joint liability, the drafters of the frand Act Fast
- 5:45Speaker 1: Act made that out of a day a hard coded
- 5:48Speaker 1: room and so that was eliminated from this Act. Not
- 5:53Speaker 1: to say it can't come back, because the council has
- 5:57Speaker 1: the ability that's been established to promulgate new rules. And
- 6:01Speaker 1: this joint employer liability issue has been uh a hot
- 6:04Speaker 1: topic for almost a decade. So you know, we're not
- 6:07Speaker 1: going to see that go away anytime soon, but at
- 6:09Speaker 1: least for the time being, it was taken out the
- 6:11Speaker 1: Fast Act. They also made some other adjustments to the Act,
- 6:15Speaker 1: including changing the original or the previous draft at thirteen
- 6:21Speaker 1: council members. Uh, you know, this one has ten. There's
- 6:24Speaker 1: some changes you know to you know, who is on
- 6:27Speaker 1: on the council. There's there's two representatives from uh fast
- 6:32Speaker 1: food quota. Because I say fast food, it's fast food
- 6:35Speaker 1: u uh, not to digress, but fast food is any
- 6:39Speaker 1: establishment you know, uh, you know that sells food for
- 6:43Speaker 1: immediate consumption. Two consumers who order or select items and
- 6:48Speaker 1: pay before eating, with items prepared in advance, including items
- 6:53Speaker 1: that may be prepared in bulk, they kept hot, or
- 6:55Speaker 1: with items prepared or heated quickly, or with limited or
- 6:59Speaker 1: no table service. So those are the criteria for fast food.
- 7:02Speaker 1: And so a lot of people assume that this applied
- 7:05Speaker 1: to the just the big chain restaurants, you know. And
- 7:08Speaker 1: in the language, the new Act changes the number of
- 7:11Speaker 1: locations earlier draft of thirty nationally, now it's a hundred nashally,
- 7:18Speaker 1: So a lot of folks assume that it just applied
- 7:21Speaker 1: to traditional large fast food restaurants, but it also covers
- 7:26Speaker 1: a whole bunch of other types of restaurants that are
- 7:28Speaker 1: not necessarily associated traditional fast food, so especially any any
- 7:33Speaker 1: counter service restaurant UH in the state of California. So
- 7:36Speaker 1: a lot of fast casual restaurants are going to be
- 7:39Speaker 1: covered by this UH coffee UH concepts, um, even the
- 7:44Speaker 1: fat restaurants, and so it hast a much brighter net.
- 7:47Speaker 1: And it's not just franchise this which is the other
- 7:49Speaker 1: important station UH, this is effects company owned restaurants that
- 7:55Speaker 1: meet criteria. Yet there's no representation on the council for
- 8:00Speaker 1: for people from those companies as of yet, which is
- 8:02Speaker 1: which is quite interesting and also concerning at the same time.
- 8:07Speaker 1: In addition, one of the other key changes that was
- 8:09Speaker 1: put in was the Council has the ability to raise
- 8:12Speaker 1: the minimum wage in California to up to twenty two
- 8:15Speaker 1: dollars in our next year and afterwards three and a
- 8:20Speaker 1: half percent increases each year thereafter for a certain number
- 8:23Speaker 1: of years. So that's something that was put in there
- 8:26Speaker 1: that when you think about it, if the council does
- 8:29Speaker 1: problemly gate bad and now restaurants that meet this quote
- 8:33Speaker 1: unquote fast food and criteria are required to pay that
- 8:36Speaker 1: That is going to affect essentially every other restaurant in
- 8:40Speaker 1: the state of California because very few are paying a
- 8:43Speaker 1: minimum wage of two an hour, so from a competitive landscape,
- 8:48Speaker 1: if that happens, they're going to be required to rethink
- 8:51Speaker 1: their compensation practices. So for that and a number of
- 8:54Speaker 1: other reasons. Uh, this act affects all restaurants in California
- 8:59Speaker 1: and every but you should have their eyes on this
- 9:01Speaker 1: because it's not going away and it's not just staying California. Yeah,
- 9:06Speaker 1: it's uh, it's really interesting. Um, there's so many, you know,
- 9:10Speaker 1: things we could talk about in uh in that response.
- 9:13Speaker 1: Um number one, you know, it's interesting that they're going
- 9:15Speaker 1: after their fast food because it's probably the easiest to automate. Right. Um,
- 9:20Speaker 1: but you know, let's kind of I guess moved to
- 9:23Speaker 1: that that last point you made about the potential in
- 9:26Speaker 1: our minimum wage and and like you say, all restaurants
- 9:29Speaker 1: are going to be impacted. And it's not just gonna
- 9:31Speaker 1: be the hourly workers, right, Like a general manager is
- 9:34Speaker 1: going to require you know, it's going to want to
- 9:37Speaker 1: continue to be paid better than the hourly employees. So
- 9:41Speaker 1: you're gonna have to raise the um salaries for your
- 9:44Speaker 1: assistant GM and your gms and and everyone down the line.
- 9:48Speaker 1: You know, people that have been with you for years.
- 9:51Speaker 1: They isn't fair for them if if their experience and
- 9:57Speaker 1: very good at what their what they do, and somebody
- 9:59Speaker 1: had just walks in all the streets making twenty two dollars.
- 10:01Speaker 1: But you know, by our calculation at twenty two bucks,
- 10:05Speaker 1: California restaurants are going to have to raise prices to
- 10:09Speaker 1: maintain profitability, assuming traffic remains flat. And that's not even
- 10:14Speaker 1: including commodity inflation, which we know is running extremely hot,
- 10:18Speaker 1: as hot as I've ever seen it. Right, So we
- 10:21Speaker 1: think traffic gets hard, hits hit hard, requiring price increases
- 10:24Speaker 1: of over for change that can do it just so
- 10:28Speaker 1: they can remain profitable, profitable. So how concerned or politicians
- 10:34Speaker 1: about the inflationary impact of the bill? Right, because it's
- 10:37Speaker 1: usually low and middle income consumers that are shopping at
- 10:40Speaker 1: and purchasing food at these types of establishments. Um to
- 10:44Speaker 1: the politicians understand that that the wage could render many
- 10:48Speaker 1: restaurants in California unprofitable. Well, uh, politicians in California do
- 10:55Speaker 1: not seem to really care, because if they did they
- 10:58Speaker 1: would not have passed this act. These issues have been
- 11:02Speaker 1: well covered and debated throughout the legislative process, and so
- 11:06Speaker 1: the current state of politics in California is such that uh,
- 11:12Speaker 1: anything that is essentially uh, you know, labor driven uh
- 11:17Speaker 1: is going to stand a much better chance of getting
- 11:19Speaker 1: past like this then UH, legislation that is grounded in
- 11:25Speaker 1: business judgment and economics and facts and reality and so um. Naturally,
- 11:31Speaker 1: nobody wants, you know, from a consumer standpoint, you know,
- 11:35Speaker 1: from a business standpoint to see you know, mass pricing increases,
- 11:41Speaker 1: especially in the state of where we are with significant
- 11:45Speaker 1: inflation and economic uncertainty. UM. But that's where we are,
- 11:49Speaker 1: and that's the situation that the passage of this act presents,
- 11:54Speaker 1: and so uh it's going to be really interesting just
- 11:57Speaker 1: to see how this unfolds um over time, the ramification
- 12:02Speaker 1: of this. It's it's really hard to wrap your head
- 12:05Speaker 1: around how many issues this is going to create, because
- 12:09Speaker 1: there are so many uncertainties left uh, you know, wide
- 12:13Speaker 1: open that are only going to be uh known through
- 12:16Speaker 1: the implementation of this. And I think, um your point
- 12:21Speaker 1: about the substantial price increases and so forth, that's all
- 12:25Speaker 1: what we've been hearing as well twenty percent or or
- 12:29Speaker 1: or more, but it's it's really hard to tell. And
- 12:32Speaker 1: also behind the backdrop of this, California also has probably
- 12:37Speaker 1: the most complex and expensive and litigious, uh you know,
- 12:42Speaker 1: labor scheme in terms of class action lawsuits and other things.
- 12:47Speaker 1: That has been a problem for operating in California for
- 12:51Speaker 1: many years with wage and our claims, POGA claims and others.
- 12:56Speaker 1: So you drop this into the suit and you have
- 12:59Speaker 1: a situation that is very complex and very concerning and
- 13:04Speaker 1: uh incredibly expensive, which um, the consumer is going to
- 13:09Speaker 1: ultimately have to pay for the cost of this that
- 13:13Speaker 1: the employees are as well, because it's going to cost jobs. Uh,
- 13:17Speaker 1: it's going to cost businesses not to hire to replace
- 13:22Speaker 1: labor with technology to do the things they've been doing
- 13:25Speaker 1: over the years, but just on a much more expedited scale. Yeah,
- 13:30Speaker 1: for sure, a lot of these technologies are going to
- 13:32Speaker 1: start to have an our r o I at twenty
- 13:34Speaker 1: two hours an hour. And you know, some of the
- 13:36Speaker 1: chans we cover, like Tripotle a is um has robots
- 13:39Speaker 1: that are making tortilla chips and uh, you know Jack
- 13:43Speaker 1: in the Box is working with automation uh in the
- 13:46Speaker 1: kitchens as well. These are two companies that that are
- 13:49Speaker 1: hebably um, that are based out of California and have
- 13:52Speaker 1: a large percentage of the restaurants in the States, so
- 13:55Speaker 1: that I guess they've seen this uh coming down the pike.
- 13:59Speaker 1: But um, you know, I guess getting back a little
- 14:02Speaker 1: bit to the joint employer provision. You know, why do
- 14:05Speaker 1: you think that was pulled? I mean, obviously it would
- 14:07Speaker 1: have been a significant blow to the franchise industry and
- 14:10Speaker 1: turned decades of contract law on its head. I mean,
- 14:13Speaker 1: was this the cooler heads prevail? Does this make it
- 14:16Speaker 1: easier to pass? Was this something that the Governor's office
- 14:20Speaker 1: kind of required? Correct? From what I understand, the amendments
- 14:23Speaker 1: are almost all of them that came through came directly
- 14:26Speaker 1: from the Governor's office, and that was if this is
- 14:28Speaker 1: going to be passed, that provision needs to be removed.
- 14:31Speaker 1: And that was, in my personal opinion, absolutely the right
- 14:34Speaker 1: right thing to do, as flow as the opinion of others.
- 14:37Speaker 1: Imposing that type of liability on franchise oors would um
- 14:44Speaker 1: create a situation in California where existing and new franchise
- 14:48Speaker 1: oars would not do business there and the franchise restaurant
- 14:52Speaker 1: business in California is such a significant part of the
- 14:56Speaker 1: California economy, providing a very substantial number of jobs. And
- 15:02Speaker 1: you know, we had clients reaching out, as as many
- 15:06Speaker 1: others have over the course of many months, urging the
- 15:09Speaker 1: removal of this provision. So it's it's good to see
- 15:13Speaker 1: that it was removed at least for now. Um. But
- 15:17Speaker 1: as said at the outside of the conversation, this is
- 15:19Speaker 1: an issue that's been going around for a very long
- 15:22Speaker 1: time outside of the fast Act, and so you know,
- 15:24Speaker 1: it's just kind of a wait and see, you know,
- 15:26Speaker 1: how much, uh or if ever this will return. And
- 15:30Speaker 1: I know that was a case was brought before the
- 15:32Speaker 1: n l RB, McDonald's case right during the abomb administration.
- 15:37Speaker 1: So so I guess is that something you expect the
- 15:39Speaker 1: n l RB to tackle on a national level. It
- 15:42Speaker 1: sounds like that's that's probably a better way, uh for
- 15:46Speaker 1: them to approach it versus you know, harming a state. Um. Yeah,
- 15:51Speaker 1: I think we may see that being revisited. And I
- 15:54Speaker 1: don't know if John has anything more current on that,
- 15:56Speaker 1: but it's it's something you know that's been out there
- 15:58Speaker 1: for a while. Yeah, it is a it is a
- 16:02Speaker 1: mechanism that the n LRB likes to likes to challenge
- 16:05Speaker 1: UM at the behest at the behest of the people
- 16:08Speaker 1: who file the untre labor practice charges and the election petitions,
- 16:12Speaker 1: mainly unions UM, in that it it can make it
- 16:16Speaker 1: easier for the UM for the unions too, uh to
- 16:20Speaker 1: organize with relatively less effort. Thanks. And uh so it
- 16:25Speaker 1: sounds like the Governor's office has had had a hand
- 16:28Speaker 1: in these amendments. So so what are the odds I
- 16:31Speaker 1: guess where you placing the odds right now that Governor
- 16:34Speaker 1: knews some signs of bill into law. From what we
- 16:37Speaker 1: are hearing, the odds are are very high that uh
- 16:40Speaker 1: government signs it into law. And uh and you know,
- 16:46Speaker 1: I don't know if I'm off base asking this question,
- 16:48Speaker 1: but uh, you know, well, us I guess is why
- 16:51Speaker 1: I have you on here. Well, the fast Stact hold
- 16:53Speaker 1: up against legal challenges, I mean, do you see any
- 16:56Speaker 1: potential legal challenges uh to this bill? Yeah, there are
- 17:00Speaker 1: potential legal challenges the bill. Uh, you know, both the
- 17:03Speaker 1: establishment the Council and UM the joint and player liability.
- 17:07Speaker 1: The last several weeks that's been a hot topic. What
- 17:10Speaker 1: if this passes, will there be a legal challenge. So
- 17:13Speaker 1: there are potential legal challenges to the bill, and UH,
- 17:18Speaker 1: I'm not sure if they will be made, but my
- 17:20Speaker 1: assumption is that there will be uh some some legal challenges.
- 17:23Speaker 1: And also there's some other potential options UH in California
- 17:28Speaker 1: that I'm not as well versed in personally as some
- 17:31Speaker 1: of our government affairs and policy team members are on
- 17:34Speaker 1: the ground of Sacramento, but includes voter referendum and these
- 17:38Speaker 1: types of items that you know are a little more
- 17:40Speaker 1: difficult than time consuming and expensive to make happen, but
- 17:43Speaker 1: there there are potential options to challenge this. So UM,
- 17:48Speaker 1: I think for the time being where a wait and
- 17:50Speaker 1: see mode one. First see if the governor does sign it,
- 17:53Speaker 1: which we assume he will, and UH then see what
- 17:56Speaker 1: unfolds O good stuff. And UH do you expect of
- 18:00Speaker 1: the states to follow suit should the bill get passed?
- 18:03Speaker 1: And if so, which which one should we keep an
- 18:05Speaker 1: eye on. We do expect to see similar efforts in
- 18:11Speaker 1: other states, and this is similar to the fight for
- 18:14Speaker 1: fifteen as I mentioned in beginning to call. Once California
- 18:18Speaker 1: does something, UM, it sets the pace for some other
- 18:22Speaker 1: states in cities, and so we would expect uh, Oregon uh.
- 18:29Speaker 1: City of Portland, UH, Seattle, State of Washington, UH, New York,
- 18:34Speaker 1: possibly other states that have been early adopters of UH
- 18:41Speaker 1: through the Fight for fifteen efforts that have been more
- 18:43Speaker 1: progressive in these areas, we would expect them to be
- 18:47Speaker 1: likely candidates for this type of legislation UH uh. And
- 18:53Speaker 1: we would expect that to be coordinated through those that
- 18:56Speaker 1: are behind the Fast Act. Who this is. We said,
- 19:00Speaker 1: this is part of a concerted effort to change the
- 19:03Speaker 1: face of labor nationally. So those are the easier UH
- 19:08Speaker 1: targets geographically, and so we would expect those to be
- 19:11Speaker 1: focused on first, but there are likely other places where
- 19:14Speaker 1: they have been very active. You know, we're seeing unionization
- 19:17Speaker 1: efforts in general touch on a few moments and in
- 19:21Speaker 1: places where we thought they wouldn't occur in Texas, uh.
- 19:25Speaker 1: You know, and and so we're living in a very
- 19:27Speaker 1: different world than we were a few years ago in
- 19:30Speaker 1: terms of how you know, these things can move, you know,
- 19:34Speaker 1: and you know how quickly they can grant gain the
- 19:36Speaker 1: ground UH swell of support in these local communities. Great,
- 19:44Speaker 1: and we're gonna wrap up our discussion about the Fast
- 19:46Speaker 1: Act UH here. UM, you know, thank you both. So
- 19:50Speaker 1: much for your time before we go. What's the best
- 19:52Speaker 1: way for our listeners to contact you? Oh, uh can
- 19:55Speaker 1: email me. My information is online, as is uh John's.
- 20:00Speaker 1: I'm Riley Logison, you know at Greenberg Trog. So Riley
- 20:04Speaker 1: dot loguson at Greenberg Troig and uh John, Yes, Jonathan
- 20:09Speaker 1: Sack also from Greenberg Trig and my information is online
- 20:12Speaker 1: and my email is Sack J. S A C k
- 20:16Speaker 1: J at g T law dot com. Thanks for your time, guys, Yeah,
- 20:20Speaker 1: thanks Bike