Steve Swirsky Quoted in “Hospitals Expected to Benefit from Joint Employer Proposal”

Bloomberg BNA Daily Labor Report

Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s New York office, was quoted in the Bloomberg BNA Daily Labor Report, in “Hospitals Expected to Benefit from Joint Employer Proposal,” by Mary Anne Pazanowski. (Read the full version – subscription required.)

Following is an excerpt:

Hospitals should benefit from a proposed rule that clarifies a muddy standard for determining employment status.

The National Labor Relations Board, which resolves employer-employee disputes, Sept. 14 made public a proposal to narrow the definition of “joint employer.” The current standard potentially obligates employers to provide protections mandated by state and federal law to workers who actually are employed by other companies.

Hospitals often have many such employees. For example, they hire staffing agencies to supplement clinical staff, like emergency room physicians and temporary nurses, and outside vendors to operate peripheral services, like cafeterias and housekeeping. …

The new standard clears up the “abstract” rights embodied in the Obama-era rule, Steven M. Swirsky, of Epstein Becker & Green, New York, told Bloomberg Law.

Two questions now are relevant to determining when a company is a joint employer: Does that party exercise control over the terms and conditions of the workers’ employment, and is that control “meaningful,” he said.

Swirsky represents employers in the health-care industry. He worked for the NLRB in the mid-1970s when the National Labor Relations Act was amended to give that body jurisdiction over health-care institutions. At that time, Congress was concerned with the proliferation of union activity in hospitals and whether it could have a disruptive effect on health care.

The new rule could lead to more union organizing, he said. …

The rule mostly would apply to unionized workers, though the NLRB also has applied some standards in nonunionized workplaces when the conduct at issue potentially involved concerted activity, like discussing an employer on social media, Swirsky said. Courts aren’t bound by the NLRB’s rules, but often are guided by them when deciding issues that don’t involve unionized workers, he said.

Swirsky said the proposed rule will be most useful in situations where a hospital has a traditional, arms-length relationship with workers hired to do nontraditional jobs. For example, it should make clear that a hospital shouldn’t be considered a joint employer of laborers replacing mechanical systems on a building in which a hospital holds an interest.

Determining whether a hospital or medical staffing agency is the employer of a nurse or other hospital-based clinical worker may be more challenging, even under the proposed rule, he said. Typically hospitals exercise more control over these workers, in terms of requiring them to follow hospital policies and setting their hours.

The joint-employer determination still will be very fact-intensive for these workers, Swirsky said.

The new rule should take effect soon after the 60-day notice and comment period expires, though both Swirsky and Holland predicted labor-side representatives would file objections.