Steven Swirsky Quoted in "NLRB Joint Employer Test Still in Limbo Despite New Member"

With the D.C. Circuit tightening the screws on the National Labor Relations Board to firmly establish a joint employer standard, Wednesday’s confirmation of former Morgan Lewis & Bockius LLP attorney John Ring may not be enough to quickly break through the ethical logjam that doomed the board’s attempt to put a more employer-friendly standard in place late last year, lawyers say.

Ring was confirmed by the Senate on Wednesday by a vote of 50-48, returning the board to a full complement of five members, including three Republicans and two Democrats. Longstanding tradition at the NLRB requires that at least three members vote in favor of overturning existing cases or establishing new precedents or legal standards, meaning that the board is now in a position to do away with numerous controversial Obama-era decisions.

Once Ring is seated, one of first items on the board’s to-do list will likely be another attempt at resolving the contentious issue of what the board’s standard should be for determining whether a business can be considered a joint employer. …

Steve Swirsky of Epstein Becker Green said the NLRB is “in relatively unprecedented territory” in regard to the apparent internal strife between Robb, the board members and the inspector general.

“It’s hard to know exactly when and how we’re going to get there, but I think we’re going to end up with some version of [Hy-Brand] or in the context of the D.C. Circuit saying … that the Browning-Ferris test for joint employer is not going to stand.”

With Ring returning the NLRB to a Republican majority, Swirsky said “there’s a good chance that when the right case gets before them … the board will revisit this and come up with something that is going to look a lot like Hy-Brand.”