Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “'Ping-Pong Game' Continues Over NLRB Joint Employer Rule,” by Tim Ryan. (Read the full version – subscription required.)

Following is an excerpt:

Texas federal judge's decision vacating the National Labor Relations Board's expanded joint employer test was a welcome development for employers and represents the latest step in a decadelong policy oscillation on when the board will consider two linked entities responsible for the same group of workers.

Friday's ruling from U.S. District Judge J. Campbell Barker sided with business groups who argued the rule was arbitrary and urged that a 2020 rule that made it easier for businesses to escape a joint employer designation should be put back in place. The NLRB's new rule, finalized in October, expanded the definition of when an entity qualifies as a joint employer, making it easier for workers to force entities like franchisors or users of staffing firms to the bargaining table and hold them liable for labor law violations.

With an appeal expected from the NLRB, one short-term effect of the decision is to continue the uncertainty that employers have needed to navigate for nearly a decade of challenged tests, said Steven Swirsky, a member at Epstein Becker Green PC who represents employers.

"We're living in this ping-pong game on issues like this," Swirsky said. "It doesn't make it easy to be an employer or giving advice to an employer, but you have to recognize that things are always in flux in this area."

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