Despite Massage Envy’s recent re-commitment to corporate safety, as described in a six-point plan adopted shortly after investigative reporting revealed hundreds of sexual assault claims pending against its massage franchises and employees, reports have surfaced of new sexual assaults claims, and continued misconduct and mishandling of existing claims of Massage Envy abuse.

In April, 2018, a Florida woman alleged that she was sexually assaulted by a Massage Envy franchisee employee when the employee inappropriately penetrated her with his hand. The woman claimed that the employee repeatedly assaulted her, causing her to be frozen in shock and fear until the massage was over. Traumatized, the woman reported this behavior to another employee at the franchise, who gave her a piece of paper to write down her experiences and directed her to a private room. After the woman had written down her experiences, she was told that “something would be done,” but to not report the incident to the police, and to let Massage Envy handle it internally. The woman initially trusted Massage Envy, but, upon hearing nothing, eventually contacted police, who advised she should have contacted them immediately after the Massage Envy abuse.

Quite obviously, such behavior is not only blatantly in violation of Massage Envy’s new corporate policy, but also in contravention of what would be in the best interests of the woman. Massage Envy’s corporate policy dictates that any assault victim should be given the contact information of local law enforcement and a private means to contact them. Furthermore, as in the case of any assault, it’s in the best interest of the victim to immediately report the assault to law enforcement so that important evidence can be preserved, and a documented, third-party record of the case can be generated. By failing to report such abuse immediately to the police, the victim could have jeopardized her legal case against those at fault. The conduct of the Massage Envy franchisee in this case is outrageous, inappropriate, and deeply disturbing, particularly in light of the rash of similar Massage Envy abuse cases exposed over the past years. Moreover, Massage Envy’s seemingly muted corporate response—reprimanding the franchisee, but also suggesting that more time was required to conduct an investigation—totally ignores the victim of this abuse, again in light of protecting its corporate brand.

Massage Envy’s apparently toothless corporate policies notwithstanding, Massage Envy is in a unique position to guide and create industry standards for the massage business, yet has repeatedly failed to do so. Prior to Massage Envy’s entrance into the massage market, the vast majority of massage parlors across the United States were individually owned or were subsets of larger facilities like day spas. Massage therapists were often either independent contractors or themselves owners of their own small businesses. As a result, most massage parlors, even if they were interested in adopting policies to broadly protect customers and employees, could only be effective to the extent of their own private practices.

In the early 2000s, Massage Envy created a new paradigm for the massage industry by pioneering a franchisor/franchisee model. Unlike in the past, massage parlors could now affiliate themselves with Massage Envy by becoming a franchisee, taking advantage of Massage Envy’s pooled corporate resources to conduct nation-wide ad campaigns. Indeed, being a Massage Envy franchisee ostensibly carries many benefits for small business owners, including training offered by Massage Envy corporate offices, added liability protection, brand recognition, superior negotiating power on commercial leases, and much more. Today, Massage Envy franchises generated over a billion dollars of revenue each year and collectively have an almost 50% market share of the franchised day-spa market. Massage Envy maintains franchises in nearly every state, and in several countries around the world, and, at least prior to the recent spate of sexual assault allegations, its franchises were frequently ranked among the most desirable in the country for owner/operators.

Related: Toothless Corporate Policies Continue to Fail to Protect Customers from Massage Envy Abuse

Despite its enormous revenue and market share, Massage Envy has failed to capitalize on—to the tremendous detriment of its customers, and its franchisees—its unique position to promulgate rules and regulations regarding sexual abuse that could apply to virtually the entirety of the massage industry, and could help to protect consumers. Although massage parlors (such as Massage Envy franchisees) are not under any pre-existing legal obligation to report suspected sexual misconduct at their locations (unlike, for example, teachers or other professions that frequently come into conduct with minors or the disabled), Massage Envy could essentially create such an obligation among its franchise operators, by mandating that all franchisees report suspected abuse or misconduct immediately to the police. Failure to do so could result in a revocation of the franchisee’s ability to operate as a Massage Envy franchise—likely the death knell for the franchise. Instead, Massage Envy’s corporate policies simply suggest that the victim of the Massage Envy abuse can choose to report such abuse to the police, and that the Massage Envy franchise’s entire participation in the reporting is limited to providing the phone number of the local police, and a private room in which to make the phone call. Such a corporate policy is clearly intended to protect the interests of Massage Envy and the franchisee, and not those actually impacted by the abuse.

As Massage Envy is certainly aware (and continually benefits from), Massage Envy operates in a nebulous legal world, in which it is neither directly responsible for the actions of its franchisees (as “merely” the franchisor of a series of massage parlors), nor are its massage parlors subjected to uniformity in state sexual abuse laws. Because Massage Envy franchisees operate in almost all fifty states (and internationally), and because there exist few, if any federal laws that might apply to massage therapy businesses uniformly, virtually every Massage Envy franchise finds itself subjected to a unique set of laws.

By way of example, the very definition of “sexual assault” can tremendously vary on a state-by-state basis. In some states, unwanted penetration can yield many decades of imprisonment, while, in others, such actions can yield only a handful of years. Unwanted touching can range from a misdemeanor to a serious felony. In some states, sexual abuse against minors or the disabled might be punished quite differently from sexual assault perpetrated against adults. Some states have specific sexual assault laws targeted to protect only women. Some states have unique definitions of “rape” which may or may not cover sexual acts performed unwillingly at a massage parlor or may require additional evidence that is functionally impossible to obtain.

In one particularly illustrative example, a woman in Texas was allegedly repeatedly groped by a massage therapist at a Massage Envy location. The woman claims that the massage therapist impermissibly and inappropriately massaged her breasts and buttocks. She found herself virtually paralyzed both by fear and, physically, by the therapist, until a local police officer arrived at the urging of her husband and a neighbor. Despite the police being involved from the outset, the massage therapist was investigated only under the suspicion of misdemeanor assault, because the definition of full-blown sexual assault in Texas necessitates that a penetration must occur. Without a penetration, it would seem that the only conceivable charge the therapist could be charged for in Texas is assault. Such an offense in Texas may not even carry a prison term for first offenders, despite the severity of the assault. In other states, such behavior might yield up to a decade in prison.

State laws not only differ in their definitions of rape and sexual assault, but also in whether the Massage Envy franchise, or Massage Envy as a corporate entity, could face liability for the actions of its employees. While, in most states, an employer is responsible for the actions of its employees, in some states state law might suggest that the Massage Envy employee acted outside the scope of his or her employment when the alleged abuse occurred. In other states, if the victim of the abuse had some alleged role in perpetrating the Massage Envy abuse—like, for example, failed to verbally object to the unwanted touching—state law might absolve the perpetrator, or severely reduce the options for recovery. Certain states might consider the victim to have “consented” to the abuse merely by appearing at the massage parlor, or by not immediately leaving when the abuse occurred. In some states, Massage Envy, the corporate entity, might be imputed to be responsible for the bad actions of its franchisees and their employees, while, in many other states, the corporate entity can effectively absolve itself of responsibility by shifting all blame onto its franchises. Indeed, this strategy is what has largely kept Massage Envy itself from being involved in many of the sexual assault cases currently alleged.

The problem of sexual abuse in service industries is not limited to massage parlors like Massage Envy. Indeed, recent reports suggests that businesses such as Uber, the popular ride hailing service, might similarly be struggling with sexual abuse issues. By early 2018, at least 100 drivers had been identified as perpetrators of sexual assault, or various manner of sexual abuse, many of which were under-reported by Uber. Like Massage Envy, Uber appears to have a woefully inadequate policy with regards to conducting background checks on potential employees, regarding providing meaningful recompense to victims of assault, and in implementing reforms that might head off similar problems in the future.

In one particularly egregious case, a Miami woman reported that she hailed an Uber to take her back home from a bar after a night out with a friend. She passed out along the way home and woke up next morning to discover her pants and underwear on the floor. She believes that her Uber driver carried her into her home, removed her clothing, and sexually abused her on her own bed, before leaving prior to her waking. The woman has joined many others in a class action lawsuit against Uber stemming from these issues of sexual assault.

In a similarly disturbing case, a Mexican Uber driver who was not legally entitled to work or reside in the United States, is alleged to have targeted young, intoxicated women while driving for Uber in central California. He allegedly raped or otherwise sexually assaulted these women over the course of many months, all the while retaining his employment with Uber. The victims of the assault claim that the driver passed Uber’s background check, where his immigration status, and potential prior criminal history of sexual assault, were never investigated in any manner.

The class action suit bears striking similarity to issues currently brewing against Massage Envy. In the Uber suit, victims of sexual assault claim that Uber created an extremely vulnerable and exploitable system permitting sexual assault criminals to gain access to victims with little to no oversight from Uber. Uber’s allegedly woefully inadequate background checks are to blame, apparently part of Uber’s corporate strategy to onload as many drivers as quickly as it can, and as cheaply as feasible. Similarly, in Massage Envy’s case, its lackadaisical corporate approach to background checks, its inability to enforce any meaningful sexual assault laws, and the intimate nature of the services its franchisees offer, all create a perfect storm of circumstances that could (and, indeed, in many cases, certainly did) lead to sexual assault.

Although Massage Envy is not alone with regards to sexual assault reporting and employee screening, there is hope. For one, as sexual assault continues to gain national awareness and attention, many states have begun to standardize their laws to create predictable, uniform laws that purport to protect victims of sexual assault and punish companies that continue to facilitate such behavior. For another, federal authorities have begun to investigate ways in which overarching federal laws might be put in place to punish bad actors, like Massage Envy, who hide behind corporate limited liability laws and the unique structure of their business to continually absolve themselves of actual liability. And finally, the public outcry against companies like Massage Envy appear to have inspired real, if slight, change, such as Massage Envy’s corporate statement regarding reforms intended to protect victims of sexual assault and more stringently background check its employees.

Thompson Law Office is here for victims of Massage Envy abuse. If you are considering a Massage Envy lawsuit, we have handled cases for many other Massage Envy complaints. Contact California massage parlor abuse attorney Bobby Thompson if you or a family member has been a victim of sexual abuse at any Massage Envy location. Thompson Law Office has the experience and skills to get you the maximum compensation you need and deserve.