Steve Swirsky Quoted in “A Return to ‘Common Sense’? A Recap of the NLRB’s Sweeping Changes So Far”

HR Dive

Steven M. Swirsky, a Member of the Firm in the Employment, Labor & Workforce Management and Health Care and Life Sciences practices, in the firm’s New York office, was quoted in HR Dive, in “A Return to 'Common Sense'? A Recap of the NLRB's Sweeping Changes So Far,” by Kathryn Moody.

Following is an excerpt:

To many of the lawyers HR Dive spoke with, the recent moves are a shift back to “common sense” — but that doesn’t necessarily guarantee things will remain that way during future administrations.

Either way, many original rulings with a Miscimarra dissent were re-examined this past week, Steven Swirsky, employment, labor and workforce management attorney at Epstein Becker Green, said. Here’s how it went down…

One of the biggest bombshells was the reversal of the Browning-Ferris joint employment standard. A decision in the Hy-Brand case brought the NLRB stance on joint employment back to a place where only employers with “direct and immediate” control over workers can be jointly liable for National Labor Relations Act violations. Browning-Ferris, which said employers with “indirect control” could be responsible, created a number of legal quandaries, particularly for the franchise model…

The timing was interesting, especially because Browning-Ferris still sits at the D.C. circuit court. “The attorneys representing the Board in that matter will have a duty to tell the circuit that there has been a change in the Board’s stance,” Swirsky said. Those attorneys can then ask the court to either hold the case as the Board re-evaluates or ask that the case be returned to the Board for consideration under the new (old) test.