Lingering Effects of Burger King Non Poaching Clause Challenged

A new individual and proposed class action lawsuit filed in U.S. District Court for the Southern District of Florida on Oct. 18, 2018 is challenging the lingering effects of the Burger King non poaching clause.

The Burger King non poaching clause is an agreement put into contracts with franchisees that prohibits one location from hiring current or former workers of another Burger King franchisee.

Typically, attracting an existing employee of one site to another location would be made by offering better hours and higher wages. But hiring from other franchisees has reportedly not been allowed by the defendants, which include Restaurant Brands International Inc., Burger King Worldwide Inc., and the Burger King Corporation.

This disallowance continued up through August 2018, when the defendants came to an agreement with Bob Ferguson, Attorney General for Washington State. The agreement to cease enforcing the Burger King non poaching clause came because the threat of litigation from the Attorney General’s office was high.

Committed to stopping this practice, Ferguson had settled with seven fast food chains in July to cease enforcement of non poaching clauses including Buffalo Wild Wings, Carl’s Jr., McDonald’s, Arby’s, Cinnabon, Auntie Anne’s, and Jimmy Johns.

Several other restaurants—under this pressure—have made public statements indicating that they are committed to eliminating this practice by ceasing to enforce current contracts with it and removing it from future ones. Applebee’s and the International House of Pancakes (IHOP) are just two of these restaurants.

According to an article published by Law360, the new lawsuit filed by plaintiff Monique M. seeks treble damages and injunctive relief for herself and employees like herself that have been grossly impacted by the Burger King non poaching clause from 2010 going forward.

It is the plaintiff’s belief that despite the efforts by the Attorney General and the agreement reached to stop enforcement with the defendants, many franchise owners are still unaware that the Burger King non poaching clause is not to be enforced. Any clause in a contract if not followed by a restaurant owner can result in forced closure by the corporate powers that be.

Monique thinks this harms employees by keeping wages low and stagnant. When another branch cannot offer a better wage, nobody competes to secure the services of the best and brightest in the labor pool. In short, nobody wins.

Both the narrative of this new lawsuit and public comments of Bob Ferguson have argued that the clause—common in many industries—is illegal with respect to federal antitrust laws.

Another aspect of the Burger King non poaching clause and similar verbiage in other fast food franchisee agreements is that its existence is carefully hidden from the employees it affects. It is allegedly not printed in any employee handbook, and so a worker may go to many extraordinary efforts to reach out to other restaurant branches and hit an unseen glass wall that keeps them in place. This concealment, according to this new lawsuit, is fraudulent and illegal as well.

The Burger King Non Poaching Clause Lawsuit is Case No. 1:18-cv-24304-JEM in the U.S. Court for the Southern District of Florida.

Join a Free Fast Food Employee Poaching Class Action Lawsuit Investigation

If you work for McDonald’s, Jimmy John’s, Pizza Hut, Little Caesars, Papa John’s, Domino’s, Burger King or Arby’s and were prevented from moving to a different franchise that is part of the same company, you may have been the victim of a no-poach agreement. If so, you may qualify to participate in this employee poaching class action lawsuit investigation.

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