Is Brand Control the Same as Employment?

In Williams v. Jani-King, counsel for Jani-King has requested the Third Circuit en banc reconsider its decision to allow class certification to franchisees who claim to be employees, rather than independent contractors. Although the Third Circuit did not reach the merits of the case, which claims misclassification of the franchisees as independent contractors, the Third Circuit considered the controls inherent in the franchise relationship as a factor under Pennsylvania law.  In a strong dissent, Circuit Judge Cowen recognized franchising as a "bedrock" of the economy, and the majority decision threatens to undermine the entire franchise industry by confusing trade mark and operational controls as evidence of control over employment.