Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in SHRM, in “NLRB Adopts Expanded Joint Employer Rule,” by Leah Shepherd.
Following is an excerpt:
The National Labor Relations Board (NLRB) released a final rule Oct. 26 to provide a broadened standard for when two employers that conduct business together are considered to be joint employers and thus liable for one another's unfair labor practices.
If two entities are joint employers under the National Labor Relations Act (NLRA), both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute.
This final rule will replace an older rule that took effect on April 27, 2020. Under that rule, an employer could be a joint employer of another entity if it had direct and immediate control over the essential terms and conditions of employment, such as wages, benefits, work hours, hiring, discharge, discipline,
supervision and direction.
The new rule states that two entities are considered joint employers if they share or co-determine the employees' essential terms and conditions of employment. It will take effect 60 days after it's published in the Federal Register, which means late December.
"The board's new joint employer standard reflects both a legally correct return to common-law principles and a practical approach to ensuring that the entities effectively exercising control over workers' critical terms of employment respect their bargaining obligations under the NLRA," said NLRB Chairman Lauren McFerran. …
"I think it's going to have a big impact. I think it will be challenged in court right away," said Steve Swirsky, an attorney with Epstein Becker Green in New York City. "I think it's a big deal. The [board's] goal is to make it easier to unionize."