Steven M. Swirsky

Firm/Organization: Epstein Becker & Green, P.C.

Blogs: Health Employment and Labor, Hospitality Labor and Employment Law, Management Memo, OSHA Law Update, Retail Labor and Employment Law, Technology Employment Law, Wage and Hour Defense Blog

Latest Articles

Management Memo

NLRB Announces Plans for Further Rulemaking: Election Rules, Union Access to Employer Property, Question of Whether Student Athletes on Scholarship Are Employees, and More

By Steven M. Swirsky on June 3, 2019

The rulemaking priorities of the National Labor Relations Board (“NLRB” or “Board”) have been released, signaling what Board Chairman John F. Ring described as “the Board majority’s strong interest in continued rulemaking.” The announcement was contained in the Unified Agenda of Federal Regulatory and Deregulatory Actions, published by the Office of Management and Budget’s Office of Information and Regulatory Affairs. Issues Identified by the Board for Further Rulemaking The Board majority has identified the…

Management Memo

NLRB General Counsel Concludes That Drivers Using the Uber App Are Independent Contractors, Not Employees

By Steven M. Swirsky on May 21, 2019

The Division of Advice of the National Labor Relations Board (“NLRB” or “Board”), in an Advice Memorandum, dated April 16, 2019 (“Advice Memo”),[1] has concluded that “drivers providing personal transportation services” using Uber Technologies Inc.’s “app-based ride-share platforms” were independent contractors and not employees, as the drivers had alleged in a series of unfair labor practice charges filed in 2014, 2015, and 2016. Based on the Division of Advice’s analysis of the relationship between…

Health Employment and Labor

NYC Bill Banning Pre-Employment Marijuana Drug Testing Becomes Law

By Nathaniel M. Glasser, Lauri F. Rasnick, Michael F. McGahan, Steven M. Swirsky, Amanda M. Gómez & Anastasia A. Regne on May 15, 2019

As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving…

Management Memo

DOL Endorses Independent Contractor Status in the Gig Economy

By Kevin R. Vozzo & Steven M. Swirsky on May 3, 2019

On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter concluding that workers providing services to customers referred to them through an unidentified virtual marketplace are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”). Although the opinion letter is not “binding” authority, the DOL’s guidance should provide support to gig economy businesses defending against claims of independent contractor misclassification under the FLSA. The opinion letter may also…

Wage and Hour Defense Blog

DOL Endorses Independent Contractor Status in the Gig Economy

By Kevin R. Vozzo & Steven M. Swirsky on May 3, 2019

Management Memo

DOL Joins NLRB in Proposing a New Rule to Determine Joint Employer Status – DOL Rule Would Apply to FLSA

By Steven M. Swirsky on April 10, 2019

My colleagues Adriana S. Kosovych, Jeffrey H. Ruzal, and I have posted on Epstein Becker & Green, P.C.’s Hospitality Labor and Employment Law blog concerning the U.S. Department of Labor’s Proposed New Rule to Determine Joint Employer Status under the Fair Labor Standards Act. In its proposed new rule, the DOL notes that the National Labor Relations Board is also engaged in rulemaking to set new standards for determining joint employer status…

Hospitality Labor and Employment Law

DOL Proposes New Rule to Determine Joint Employer Status under the FLSA

By Adriana S. Kosovych, Jeffrey H. Ruzal & Steven M. Swirsky on April 10, 2019

In the first meaningful revision of its joint employer regulations in over 60 years, on Monday, April 1, 2019 the Department of Labor (“DOL”) proposed a new rule establishing a four-part test to determine whether a person or company will be deemed to be the joint employer of persons employed by another employer. Joint employer status confers joint and several liability with the primary employer and any other joint employers for all wages due to…

Management Memo

NLRB Replaces Its Test for Distinguishing Between Employees and Independent Contractors – Returns to Pre-2014 Common Law Based Test

By Steven M. Swirsky on January 28, 2019

In a three to one decision issued on January 25, 2019, the National Labor Relations Board (“NLRB” or the “Board”) in SuperShuttle DFW, Inc., 367 NLRB No.75 (2019), the Board announced it was rejecting the test adopted in 2014 in FedEx Home Delivery, 361 NLRB 610 (2014) for determining whether a worker was an employee or an independent contractor and returning to the test it used prior to the FedEx Home decision. As the…

Management Memo

NLRB Proposed Rule Will Redefine Joint-Employer Status –Rule Will Overrule Browning-Ferris and Require “Direct and Immediate Control”

By Steven M. Swirsky & Adam C. Abrahms on September 14, 2018

The National Labor Relations Board has announced publication of a proposed rule that will establish a new and far narrower standard for determining whether an employer can be held to be the joint-employer of another employer’s employees. The rule described in the Notice of Proposed Rulemaking published in the Federal Register on September 14, 2018, will, once effective essentially discard the Board’s test adopted in Browning-Ferris Industries (“Browning-Ferris”) during the Obama Administration, which substantially reduced…

Management Memo

NLRB Implements Changes to Case Processing – Announces Early Retirement and Voluntary Separation Programs for Professional Staff

By Steven M. Swirsky on August 14, 2018

Since earlier this year, reports have circulated that National Labor Relations Board (“NLRB” or “Board”) General Counsel Peter Robb planned to introduce changes in its case handling processes and organizational structure that would move certain authority away from the Regional Directors and transfer substantive decision making authority to Washington. While the General Counsel denied the specifics, he acknowledged that as the Board was faced with a reduced case load and budgetary pressures, some changes would be…

Steven M. Swirsky

NLRB Announces Plans for Further Rulemaking: Election Rules, Union Access to Employer Property, Question of Whether Student Athletes on Scholarship Are Employees, and More

NLRB General Counsel Concludes That Drivers Using the Uber App Are Independent Contractors, Not Employees

NYC Bill Banning Pre-Employment Marijuana Drug Testing Becomes Law

DOL Endorses Independent Contractor Status in the Gig Economy

DOL Endorses Independent Contractor Status in the Gig Economy

DOL Joins NLRB in Proposing a New Rule to Determine Joint Employer Status – DOL Rule Would Apply to FLSA

DOL Proposes New Rule to Determine Joint Employer Status under the FLSA

NLRB Replaces Its Test for Distinguishing Between Employees and Independent Contractors – Returns to Pre-2014 Common Law Based Test

NLRB Proposed Rule Will Redefine Joint-Employer Status –Rule Will Overrule Browning-Ferris and Require “Direct and Immediate Control”

NLRB Implements Changes to Case Processing – Announces Early Retirement and Voluntary Separation Programs for Professional Staff

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