Steve Swirsky Quoted in “NLRB Opts for Rulemaking to Craft Joint Employer Test”

Law360

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 Law360, in “NLRB Opts for Rulemaking to Craft Joint Employer Test,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

The National Labor Relations Board on Thursday released a proposed rule that would roll back a controversial 2015 decision loosening the board’s test for determining whether affiliated businesses are joint employers, turning to rulemaking after ethics questions torpedoed the NLRB’s effort to undo the Obama-era ruling through case law.

The rule, which is set for publication in the Federal Register on Friday, proposes that the board will only find a business jointly employs another company’s workers if it controls the “essential terms and conditions” of their employment, such as hiring, firing, discipline and supervision. This control must be “direct and immediate” rather than “limited and routine.”

The rule would overturn a test established in the NLRB’s 2015 Browning-Ferris decision allowing a joint employer finding even where a company has only “indirect” control over company’s workers. The test is a significant issue for labor and management alike because workers can collectively bargain with joint employers and hold them mutually liable for labor violations. …

“Whatever the standard ultimately is, if you’re a union advocate, you’re not going to say that you’re foreclosed,” Epstein Becker Green labor attorney Steven Swirsky told Law360. “You’re going to raise the argument.” …

The challenges of rulemaking may work somewhat in the majority’s favor, however. Because presidents by tradition appoint a board majority of their party, and the agency generally interprets the NLRA through case law, it’s prone to policy oscillations when the White House changes hands. But the next Democratic administration won’t find it as easy to rescind a joint employer rule as it would to overturn a joint employer ruling, Swirsky said.

“Once it makes a rule, [the board] can’t then disavow the rule in a decision,” Swirsky said. “Rulemaking takes longer and rulemaking invites more scrutiny.”