Bernice E. Margolis

Michael Lowry (Partner-Las Vegas, NV) submitted an amicus brief on behalf of the Las Vegas Defense Lawyers (LVDL) regarding a writ petition discussing how much detail the Nevada Rules of Civil Procedure (NRCP) 35 requires, both in a motion seeking an NRCP 35 exam and in the order granting that motion. The plaintiff argues for exacting specificity that includes every technique, test, procedure, and question that will be asked. However, NRCP 35 does not require the extensive degree of specificity that the plaintiff asserts, nor is it practical. LVDL’s brief notes that this is a recurring dispute that is frequently litigated and that appellate guidance would be helpful.

Jacqueline Hattar (Partner-White Plains, NY) and Urvashi Sinha (Partner-New York, NY) obtained summary judgment on behalf of Wilson Elser’s client, a truck driver, in the New York State Supreme Court, Bronx County. The plaintiff alleged that our client was negligent in the ownership and operation of his tractor-trailer truck by illegally parking it on a Bronx roadway. As a result of the alleged accident, the plaintiff claimed to have sustained serious injuries to his right shoulder and lumbar spine, requiring two surgeries, and sought to recover the client’s $1 million policy limit. Before depositions were completed, Jackie moved for summary judgment, seeking dismissal of the plaintiff’s complaint and all cross-claims. Jackie and Urvashi argued that, based on the police investigation and witness statements, our client’s truck was legally parked and did not make contact with the plaintiff’s vehicle, which had been struck by the co-defendant’s vehicle. In opposition, the plaintiff argued that the motion was premature because depositions had not yet been completed and that triable issues of fact existed as to whether Wilson Elser’s client was lawfully parked and whether the parked truck caused or contributed to the accident. In reply, Jackie and Urvashi maintained that the plaintiff failed to submit any evidence in admissible form, such as affidavits, photographic, or video evidence, to establish that the client’s truck was illegally parked in the roadway. The court agreed with Wilson Elser’s arguments and granted the motion in all respects. Jackie drafted the motion papers, and Urvashi orally argued the motion before the court on behalf of our client. The plaintiff’s action is continuing against the co-defendants, the driver and the vehicle owner.  

Samantha Marrelli (Associate-White Plains, NY) and Gregg Tatarka (Partner-White Plains, NY) secured a stipulation of discontinuance in the Supreme Court of the State of New York, Sullivan County, on behalf of a global consumer electronics company client in a product liability action arising from an alleged residential fire. The plaintiff claimed that a washing machine at their Rock Hill, New York, residence was defective and caused a fire.  The complaint asserted causes of action for negligence, strict product liability, breach of warranty, and product malfunction, and sought damages of nearly $90,000, plus interest from the date of the alleged fire. Throughout the litigation, the plaintiff's counsel repeatedly attempted to settle the matter without a laboratory examination of the subject product. Samantha consistently pushed back and maintained the client’s position that no settlement discussions would be entertained absent an examination. After Wilson Elser refused multiple settlement demands, the plaintiff provided a stipulation of discontinuance and is no longer pursuing the matter. 

The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not. Background: The Construction Statute of Repose In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.  Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).  Concept Statute of Limitation (SOL) Statute of Repose (SOR) Trigger Event Accrual of cause of action (discovery of injury) Substantial completion of construction services Primary Purpose Encourages diligent prosecution of known claims Provides a date certain for the end of legal liability Duration (WA) Generally, two-to-three years for torts Six years for construction-related activities Tolling Often tolled by discovery or minority status Generally, not tollable (hard outer wall) Status of Right Bars the remedy Extinguishes the underlying right of action For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12. Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts: The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property. The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function. The Polinder Decision In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims. 1. The Integral Systems Requirement  The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose. 2. The Product Seller Exception  While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed. Impact on Asbestos Cases and Defendants The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward: Reliance on Expert Evidence Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate. Evaluating the Contractor's Role Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials. Continued Importance of Proximate Cause For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure. Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026). Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.

Q: Can an entity be liable to an employee even if it is not their employer? A: Yes, a company can be held liable under the joint-employer rule even if the company does not employ the individual. Consequences for this designation can be significant. The National Labor Relations Board (NLRB) publishes rules for determining a joint employer under the National Labor Relations Act (NLRA). Under the NLRA, an entity can have joint liability with an employer for unfair labor practices, union bargaining obligations, and even being bound by collective bargaining agreements between the employer and employee.1 History The current rule established by the NRLB went into effect on February 27, 2026. It formally reinstates the direct control joint employer test previously implemented under the first Trump Administration in 2020. The 2020 rule established the entity-friendly standard in the direct control joint employer test, replacing the 2015 standard under Browning-Ferris Industries of California, Inc., 362 NLRB No. 186. However, employers have long been subjected to a ping-pong match that appears to change the standard with each administration. After three years of implementing the 2020 rule, the NRLB in the Biden Administration revoked it and issued a broader rule in 2023 that expanded potential liability and obligations to entities. The rule proposed that an entity could be deemed an employer if the entities “share or codetermine” one or more of the employees’ essential terms and conditions of employment.2 The 2023 rule, however, was short-lived before it was thrown into uncertainty. On March 8, 2024, prior to the rule becoming effective, the U.S. District Court for the Eastern District of Texas struck down the Biden Administration’s 2023 rule.3 The Court stated the rule did not distinguish an employer from a contractual partner. The NLRB declined to appeal the Court’s decision.  New Rule Narrows the Joint Employer Analysis Following a newly-minted NLRB seated under the Trump Administration, the Board published the new rule in the Federal Register—Withdrawal of 2023 Standard for Determining Joint Employer Status, 91 Fed. Reg. 9707 (Feb. 27, 2026).4 Under this “new” 2026 rule, an entity can only be found to be a joint employer if it possesses or exercises “substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningly affects matters relating to the employment relationship with those employees.”5 The essential terms and conditions of employment are defined by the rule as: Wages, which includes determining wage rates, salary, or any other rate of pay Benefits, which includes determining fringe benefits offered to another employer’s employees, such as health insurance or pension plans Hours of work, which includes determining work schedules or work hours, including any parameters relating to overtime, of another employer’s employees Hiring, which includes determining whether or not a particular employee is hired, but not by requesting changes in staffing levels or setting minimal hiring standards Discharge, which includes deciding to terminate the employment of another employer’s employee but does not include notifying employer of misconduct, poor performance, or removing another employer’s employee to continue performing work under a contract Discipline, which includes deciding to suspend or otherwise discipline another employer’s employee but does not include notifying employer of misconduct, poor performance, or removing another employer’s employee to continue performing work under a contract Supervision, which includes instructing another employer’s employees how to perform their work or issuing employee performance views but does not include primarily telling another employer’s employees what work to perform, or where and when to perform it Direction, which includes assigning particular employees work schedules, positions, and tasks but does not include setting schedules for the completion of a project or describing the work that must be accomplished on a project Of particular note is the entity-friendly inclusion that the control must be “substantial.” Control is not substantial if exercised on a “sporadic, isolated or de minimis basis."6 NLRB’s Implementation of the Rule The Board has already begun implementing the new rule. In South Sound Inpatient Physicians, PLLC and Joint Employer Peacehealth, 19-RC-338479; 374 NLRB No. 101 (Bellingham, WA, April 30, 2026), the Board determined that PeaceHealth was not a joint employer under the new standard and reversed the Regional Director’s findings. The Board found that PeaceHealth management's participation in the hospitalist's interview, and its requirement that South Sound credential the hospitalist as a condition of employment, were insufficient to establish direct and immediate control over hiring. The Board further found that the credentialing requirements did not extend beyond setting forth minimum hiring standards. The Board also concluded that with respect to supervision, PeaceHealth’s involvement in the hospitalist’s work did not extend beyond “telling another employer’s employees what work to perform…but not how to perform it.” As to wages, the Board found any restraint on South Sound’s parameters as to what to pay employees was more of an economic reality. Finally, the Board found with respect to benefits that PeaceHealth only required that the hospitalists have malpractice insurance. It did not have a role in selecting the plan, carrier, or level of coverage. This ruling shows that the NLRB’s new rule significantly limits application of joint employer obligations even if an entity exercises some control over another entity’s employee.  Tips for Employers to Stay Up-to-Date Although the new rule is more entity friendly, entities must take steps to stay up-to-date to avoid establishing joint employer relationships with other employer’s employees, such as: Review all contracts to determine whether any provisions may be considered a joint-employer relationship under the current test. Train management and supervisors on current test to avoid inadvertent direct control over non-employees that may not be clear or reflected in contracts. Maintain communications with counsel to keep up-to-date on inevitable changes to the joint employer test and other labor developments.  It is always best practice to consult with legal counsel to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on the joint-employer rule and other employment considerations. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.  __________________________________________________________________________________________ 1 This new test directly impacts considerations under the NLRA. It does not impact joint employer tests under other laws such as Federal Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonable Agricultural Worker Protection Act. However, the Department of Labor issued a proposed rule on April 23, 2026 with a comment period through June 22, 2026 to update the current rule that was first implemented in 2021. See https://www.federalregister.gov/documents/2026/04/23/2026-07959/joint-employer-status-under-the-fair-labor-standards-act-family-and-medical-leave-act-and-migrant.  2 The Standard for Determining Joint-Employer Status – Final Rule published 10/27/2023, https://www.nlrb.gov/about-nlrb/what-we-do/the-standard-for-determining-joint-employer-status-final-rule. 3 Chamber of Commerce v. NLRB, 723 F. Supp. 3d 498, 519 (E.D. Tex. 2024).  4 Withdrawal of 2023 Standard for Determining Joint Employer Status,https://www.federalregister.gov/documents/2026/02/27/2026-03955/withdrawal-of-2023-standard-for-determining-joint-employer-status 5 Id. 6 Id.

On May 27, 2026, Governor Kathy Hochul signed New York's 2026 state budget into law. The $268.1 billion budget includes significant tort reform provisions for New York State motor vehicle litigation. The reforms took effect immediately and apply to all motor vehicle actions commenced on or after the law’s passage, other than accidents resulting in a death or property damage.  I. Shift from Pure to Modified Comparative Negligence in Motor Vehicle Cases The biggest change is to C.P.L.R. § 1411, which has long governed comparative negligence in New York. With the addition of a new subsection "b," New York now moves from a pure to a modified comparative negligence state but just for motor vehicle accident cases. Under a pure comparative negligence system, plaintiffs could recover compensation even if they were predominantly at fault. For example, a party who was 99 percent responsible for an accident could still recover one percent of the total damages. Now, under the new law, a plaintiff who is more at fault (i.e. more than 50 percent) than the other persons involved in a motor vehicle accident cannot recover. In practice, if a jury finds a car accident plaintiff is 51 percent or more at fault, it will not proceed to calculate and award damages.  II. Elimination of the 90/180-Day Serious Injury Category The tort reform also amends subsection (d) of Insurance Law § 5102 to eliminate the so-called "90/180-day" category of serious injury. Under prior law, a plaintiff could satisfy the serious injury “threshold” by demonstrating a medically determined injury of a non-permanent nature that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the 180 days immediately following the accident (e.g. going to work or school). This category faced significant criticism because it often relied on subjective, self-reported information and/or allowed someone who could go to work but didn’t to automatically meet the threshold. III. New Sequencing Requirement: Fault Before Serious Injury Another aspect is that Insurance Law § 5104(a) now requires juries to decide who is at fault for a motor vehicle accident before figuring out whether the serious injury threshold is met. Under the new rules, liability for non-economic loss (i.e., pain and suffering) isn't set until fault is determined. This means that the trier of fact must assign blame first, then assess damages afterward, specifically for non-economic losses. The new sequencing rule has significant strategic effects. Under the updated comparative negligence system for car accident cases, if the jury finds the plaintiff more than 50 percent at fault, they stop right there–no damages awarded. If the plaintiff’s fault does not exceed 50 percent, the jury then considers whether the plaintiff’s injuries satisfy the other requirements in § 5102(d). This makes trials more efficient and keeps juries from letting information about injuries bias their decision when the plaintiff is too fault-prone to recover damages. IV. Recovery Cap for Claimants Engaged in Unlawful Conduct Finally, Insurance Law Section 5104 now includes a new subsection (d). It caps non-economic loss (i.e., pain and suffering) recovery for a motor vehicle accident at $100,000 when the plaintiff is in one of three specific groups (unless the accident results in death): The plaintiff was operating an uninsured motor vehicle in violation of Article 6 of the Vehicle and Traffic Law (with an exception for lapses in coverage of fewer than 30 days). The plaintiff was operating a motor vehicle while impaired and has been convicted of that offense. The plaintiff was operating a motor vehicle in the commission of a felony or in immediate flight afterwards, with a conviction for the same. While the situations described above are thankfully rare, they do occur. The new law will prevent a significant recovery from others by drivers who were uninsured, intoxicated, and/or felons. The authors acknowledge the contributions made by summer staff assistant Christopher DeMicco.

Michael Lowry (Partner-Las Vegas, NV) will present “Celebrity Deposition Deathmatch!” at the State Bar of Nevada’s Annual Conference, held in Lahaina, Hawaii, at the Hyatt Regency Maui Resort and Spa from June 17–19, 2026. Analyzing the “train wrecks” celebrity depositions sometimes are, Michael’s presentation will review various deposition clips, discuss their implications, and consider the ethics of taking and defending depositions.

Jennifer Schmalz (Partner-New York, NY) and Michael Colgan (Associate-New York, NY) will present the Wilson Elser Forum webinar “2026 New York Employment Law Update” on June 18, 2026. Jennifer and Michael will provide an update on the latest changes to New York’s employment law landscape. They will specifically examine three recently enacted laws and their impacts on employers, related litigation and claims handling. They will also highlight three lesser-known but equally important legislative changes and conclude with an overview of some of the major trends expected to shape the future of New York employment law.

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

Denise Motta (Of Counsel-Louisville, KY) has been elected Secretary of the Board of Directors for the National Association of Women in Construction (NAWIC) #97, the regional branch for the Louisville, Kentucky, and Southern Indiana area, for the 2026 ‒ 2027 term. A member of NAWIC Chapter #97 for four years, Denise has served in numerous volunteer capacities, including planning WIC Week and the NAWIC #97 Gold Scramble. She is a frequent presenter for the chapter on key legal topics, most recently sharing insights on OSHA best practices.

Samantha Marrelli (Associate-White Plains, NY) and Gregg Tatarka (Partner-White Plains, NY) secured a stipulation of discontinuance in the Supreme Court of the State of New York, Sullivan County, on behalf of a global consumer electronics company client in a product liability action arising from an alleged residential fire. The plaintiff claimed that a washing machine at their Rock Hill, New York, residence was defective and caused a fire.  The complaint asserted causes of action for negligence, strict product liability, breach of warranty, and product malfunction, and sought damages of nearly $90,000, plus interest from the date of the alleged fire. Throughout the litigation, the plaintiff's counsel repeatedly attempted to settle the matter without a laboratory examination of the subject product. Samantha consistently pushed back and maintained the client’s position that no settlement discussions would be entertained absent an examination. After Wilson Elser refused multiple settlement demands, the plaintiff provided a stipulation of discontinuance and is no longer pursuing the matter. 

Jacqueline Hattar (Partner-White Plains, NY) and Urvashi Sinha (Partner-New York, NY) obtained summary judgment on behalf of Wilson Elser’s client, a truck driver, in the New York State Supreme Court, Bronx County. The plaintiff alleged that our client was negligent in the ownership and operation of his tractor-trailer truck by illegally parking it on a Bronx roadway. As a result of the alleged accident, the plaintiff claimed to have sustained serious injuries to his right shoulder and lumbar spine, requiring two surgeries, and sought to recover the client’s $1 million policy limit. Before depositions were completed, Jackie moved for summary judgment, seeking dismissal of the plaintiff’s complaint and all cross-claims. Jackie and Urvashi argued that, based on the police investigation and witness statements, our client’s truck was legally parked and did not make contact with the plaintiff’s vehicle, which had been struck by the co-defendant’s vehicle. In opposition, the plaintiff argued that the motion was premature because depositions had not yet been completed and that triable issues of fact existed as to whether Wilson Elser’s client was lawfully parked and whether the parked truck caused or contributed to the accident. In reply, Jackie and Urvashi maintained that the plaintiff failed to submit any evidence in admissible form, such as affidavits, photographic, or video evidence, to establish that the client’s truck was illegally parked in the roadway. The court agreed with Wilson Elser’s arguments and granted the motion in all respects. Jackie drafted the motion papers, and Urvashi orally argued the motion before the court on behalf of our client. The plaintiff’s action is continuing against the co-defendants, the driver and the vehicle owner.  

Michael Lowry (Partner-Las Vegas, NV) submitted an amicus brief on behalf of the Las Vegas Defense Lawyers (LVDL) regarding a writ petition discussing how much detail the Nevada Rules of Civil Procedure (NRCP) 35 requires, both in a motion seeking an NRCP 35 exam and in the order granting that motion. The plaintiff argues for exacting specificity that includes every technique, test, procedure, and question that will be asked. However, NRCP 35 does not require the extensive degree of specificity that the plaintiff asserts, nor is it practical. LVDL’s brief notes that this is a recurring dispute that is frequently litigated and that appellate guidance would be helpful.

The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not. Background: The Construction Statute of Repose In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.  Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).  Concept Statute of Limitation (SOL) Statute of Repose (SOR) Trigger Event Accrual of cause of action (discovery of injury) Substantial completion of construction services Primary Purpose Encourages diligent prosecution of known claims Provides a date certain for the end of legal liability Duration (WA) Generally, two-to-three years for torts Six years for construction-related activities Tolling Often tolled by discovery or minority status Generally, not tollable (hard outer wall) Status of Right Bars the remedy Extinguishes the underlying right of action For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12. Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts: The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property. The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function. The Polinder Decision In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims. 1. The Integral Systems Requirement  The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose. 2. The Product Seller Exception  While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed. Impact on Asbestos Cases and Defendants The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward: Reliance on Expert Evidence Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate. Evaluating the Contractor's Role Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials. Continued Importance of Proximate Cause For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure. Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026). Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.

Q: Can an entity be liable to an employee even if it is not their employer? A: Yes, a company can be held liable under the joint-employer rule even if the company does not employ the individual. Consequences for this designation can be significant. The National Labor Relations Board (NLRB) publishes rules for determining a joint employer under the National Labor Relations Act (NLRA). Under the NLRA, an entity can have joint liability with an employer for unfair labor practices, union bargaining obligations, and even being bound by collective bargaining agreements between the employer and employee.1 History The current rule established by the NRLB went into effect on February 27, 2026. It formally reinstates the direct control joint employer test previously implemented under the first Trump Administration in 2020. The 2020 rule established the entity-friendly standard in the direct control joint employer test, replacing the 2015 standard under Browning-Ferris Industries of California, Inc., 362 NLRB No. 186. However, employers have long been subjected to a ping-pong match that appears to change the standard with each administration. After three years of implementing the 2020 rule, the NRLB in the Biden Administration revoked it and issued a broader rule in 2023 that expanded potential liability and obligations to entities. The rule proposed that an entity could be deemed an employer if the entities “share or codetermine” one or more of the employees’ essential terms and conditions of employment.2 The 2023 rule, however, was short-lived before it was thrown into uncertainty. On March 8, 2024, prior to the rule becoming effective, the U.S. District Court for the Eastern District of Texas struck down the Biden Administration’s 2023 rule.3 The Court stated the rule did not distinguish an employer from a contractual partner. The NLRB declined to appeal the Court’s decision.  New Rule Narrows the Joint Employer Analysis Following a newly-minted NLRB seated under the Trump Administration, the Board published the new rule in the Federal Register—Withdrawal of 2023 Standard for Determining Joint Employer Status, 91 Fed. Reg. 9707 (Feb. 27, 2026).4 Under this “new” 2026 rule, an entity can only be found to be a joint employer if it possesses or exercises “substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningly affects matters relating to the employment relationship with those employees.”5 The essential terms and conditions of employment are defined by the rule as: Wages, which includes determining wage rates, salary, or any other rate of pay Benefits, which includes determining fringe benefits offered to another employer’s employees, such as health insurance or pension plans Hours of work, which includes determining work schedules or work hours, including any parameters relating to overtime, of another employer’s employees Hiring, which includes determining whether or not a particular employee is hired, but not by requesting changes in staffing levels or setting minimal hiring standards Discharge, which includes deciding to terminate the employment of another employer’s employee but does not include notifying employer of misconduct, poor performance, or removing another employer’s employee to continue performing work under a contract Discipline, which includes deciding to suspend or otherwise discipline another employer’s employee but does not include notifying employer of misconduct, poor performance, or removing another employer’s employee to continue performing work under a contract Supervision, which includes instructing another employer’s employees how to perform their work or issuing employee performance views but does not include primarily telling another employer’s employees what work to perform, or where and when to perform it Direction, which includes assigning particular employees work schedules, positions, and tasks but does not include setting schedules for the completion of a project or describing the work that must be accomplished on a project Of particular note is the entity-friendly inclusion that the control must be “substantial.” Control is not substantial if exercised on a “sporadic, isolated or de minimis basis."6 NLRB’s Implementation of the Rule The Board has already begun implementing the new rule. In South Sound Inpatient Physicians, PLLC and Joint Employer Peacehealth, 19-RC-338479; 374 NLRB No. 101 (Bellingham, WA, April 30, 2026), the Board determined that PeaceHealth was not a joint employer under the new standard and reversed the Regional Director’s findings. The Board found that PeaceHealth management's participation in the hospitalist's interview, and its requirement that South Sound credential the hospitalist as a condition of employment, were insufficient to establish direct and immediate control over hiring. The Board further found that the credentialing requirements did not extend beyond setting forth minimum hiring standards. The Board also concluded that with respect to supervision, PeaceHealth’s involvement in the hospitalist’s work did not extend beyond “telling another employer’s employees what work to perform…but not how to perform it.” As to wages, the Board found any restraint on South Sound’s parameters as to what to pay employees was more of an economic reality. Finally, the Board found with respect to benefits that PeaceHealth only required that the hospitalists have malpractice insurance. It did not have a role in selecting the plan, carrier, or level of coverage. This ruling shows that the NLRB’s new rule significantly limits application of joint employer obligations even if an entity exercises some control over another entity’s employee.  Tips for Employers to Stay Up-to-Date Although the new rule is more entity friendly, entities must take steps to stay up-to-date to avoid establishing joint employer relationships with other employer’s employees, such as: Review all contracts to determine whether any provisions may be considered a joint-employer relationship under the current test. Train management and supervisors on current test to avoid inadvertent direct control over non-employees that may not be clear or reflected in contracts. Maintain communications with counsel to keep up-to-date on inevitable changes to the joint employer test and other labor developments.  It is always best practice to consult with legal counsel to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on the joint-employer rule and other employment considerations. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.  __________________________________________________________________________________________ 1 This new test directly impacts considerations under the NLRA. It does not impact joint employer tests under other laws such as Federal Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonable Agricultural Worker Protection Act. However, the Department of Labor issued a proposed rule on April 23, 2026 with a comment period through June 22, 2026 to update the current rule that was first implemented in 2021. See https://www.federalregister.gov/documents/2026/04/23/2026-07959/joint-employer-status-under-the-fair-labor-standards-act-family-and-medical-leave-act-and-migrant.  2 The Standard for Determining Joint-Employer Status – Final Rule published 10/27/2023, https://www.nlrb.gov/about-nlrb/what-we-do/the-standard-for-determining-joint-employer-status-final-rule. 3 Chamber of Commerce v. NLRB, 723 F. Supp. 3d 498, 519 (E.D. Tex. 2024).  4 Withdrawal of 2023 Standard for Determining Joint Employer Status,https://www.federalregister.gov/documents/2026/02/27/2026-03955/withdrawal-of-2023-standard-for-determining-joint-employer-status 5 Id. 6 Id.

On May 27, 2026, Governor Kathy Hochul signed New York's 2026 state budget into law. The $268.1 billion budget includes significant tort reform provisions for New York State motor vehicle litigation. The reforms took effect immediately and apply to all motor vehicle actions commenced on or after the law’s passage, other than accidents resulting in a death or property damage.  I. Shift from Pure to Modified Comparative Negligence in Motor Vehicle Cases The biggest change is to C.P.L.R. § 1411, which has long governed comparative negligence in New York. With the addition of a new subsection "b," New York now moves from a pure to a modified comparative negligence state but just for motor vehicle accident cases. Under a pure comparative negligence system, plaintiffs could recover compensation even if they were predominantly at fault. For example, a party who was 99 percent responsible for an accident could still recover one percent of the total damages. Now, under the new law, a plaintiff who is more at fault (i.e. more than 50 percent) than the other persons involved in a motor vehicle accident cannot recover. In practice, if a jury finds a car accident plaintiff is 51 percent or more at fault, it will not proceed to calculate and award damages.  II. Elimination of the 90/180-Day Serious Injury Category The tort reform also amends subsection (d) of Insurance Law § 5102 to eliminate the so-called "90/180-day" category of serious injury. Under prior law, a plaintiff could satisfy the serious injury “threshold” by demonstrating a medically determined injury of a non-permanent nature that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the 180 days immediately following the accident (e.g. going to work or school). This category faced significant criticism because it often relied on subjective, self-reported information and/or allowed someone who could go to work but didn’t to automatically meet the threshold. III. New Sequencing Requirement: Fault Before Serious Injury Another aspect is that Insurance Law § 5104(a) now requires juries to decide who is at fault for a motor vehicle accident before figuring out whether the serious injury threshold is met. Under the new rules, liability for non-economic loss (i.e., pain and suffering) isn't set until fault is determined. This means that the trier of fact must assign blame first, then assess damages afterward, specifically for non-economic losses. The new sequencing rule has significant strategic effects. Under the updated comparative negligence system for car accident cases, if the jury finds the plaintiff more than 50 percent at fault, they stop right there–no damages awarded. If the plaintiff’s fault does not exceed 50 percent, the jury then considers whether the plaintiff’s injuries satisfy the other requirements in § 5102(d). This makes trials more efficient and keeps juries from letting information about injuries bias their decision when the plaintiff is too fault-prone to recover damages. IV. Recovery Cap for Claimants Engaged in Unlawful Conduct Finally, Insurance Law Section 5104 now includes a new subsection (d). It caps non-economic loss (i.e., pain and suffering) recovery for a motor vehicle accident at $100,000 when the plaintiff is in one of three specific groups (unless the accident results in death): The plaintiff was operating an uninsured motor vehicle in violation of Article 6 of the Vehicle and Traffic Law (with an exception for lapses in coverage of fewer than 30 days). The plaintiff was operating a motor vehicle while impaired and has been convicted of that offense. The plaintiff was operating a motor vehicle in the commission of a felony or in immediate flight afterwards, with a conviction for the same. While the situations described above are thankfully rare, they do occur. The new law will prevent a significant recovery from others by drivers who were uninsured, intoxicated, and/or felons. The authors acknowledge the contributions made by summer staff assistant Christopher DeMicco.

Michael Lowry (Partner-Las Vegas, NV) will present “Celebrity Deposition Deathmatch!” at the State Bar of Nevada’s Annual Conference, held in Lahaina, Hawaii, at the Hyatt Regency Maui Resort and Spa from June 17–19, 2026. Analyzing the “train wrecks” celebrity depositions sometimes are, Michael’s presentation will review various deposition clips, discuss their implications, and consider the ethics of taking and defending depositions.

Jennifer Schmalz (Partner-New York, NY) and Michael Colgan (Associate-New York, NY) will present the Wilson Elser Forum webinar “2026 New York Employment Law Update” on June 18, 2026. Jennifer and Michael will provide an update on the latest changes to New York’s employment law landscape. They will specifically examine three recently enacted laws and their impacts on employers, related litigation and claims handling. They will also highlight three lesser-known but equally important legislative changes and conclude with an overview of some of the major trends expected to shape the future of New York employment law.

Jonathan Meer (Partner-New York, NY) will present the Wilson Elser Forum webinar “Legal Ethics in the World of Artificial Intelligence” on July 16, 2026. The presentation will address how attorney regulation has evolved over time and what steps are being considered for policing attorney use of AI. Jonathan will touch on some of the model rules and ethical opinions concerning technology, as well as rules being adopted by the courts regarding AI use. He’ll also highlight instances of attorneys being reprimanded for misusing AI. Using artificial intelligence as a tool is becoming more commonplace among lawyers. The AI guidelines, whether established by courts, state bar associations, law firms, individual practitioners, or otherwise, should be a growing concern that requires careful consideration by lawyers today. 

Denise Motta (Of Counsel-Louisville, KY) has been elected Secretary of the Board of Directors for the National Association of Women in Construction (NAWIC) #97, the regional branch for the Louisville, Kentucky, and Southern Indiana area, for the 2026 ‒ 2027 term. A member of NAWIC Chapter #97 for four years, Denise has served in numerous volunteer capacities, including planning WIC Week and the NAWIC #97 Gold Scramble. She is a frequent presenter for the chapter on key legal topics, most recently sharing insights on OSHA best practices.

Samantha Marrelli (Associate-White Plains, NY) and Gregg Tatarka (Partner-White Plains, NY) secured a stipulation of discontinuance in the Supreme Court of the State of New York, Sullivan County, on behalf of a global consumer electronics company client in a product liability action arising from an alleged residential fire. The plaintiff claimed that a washing machine at their Rock Hill, New York, residence was defective and caused a fire.  The complaint asserted causes of action for negligence, strict product liability, breach of warranty, and product malfunction, and sought damages of nearly $90,000, plus interest from the date of the alleged fire. Throughout the litigation, the plaintiff's counsel repeatedly attempted to settle the matter without a laboratory examination of the subject product. Samantha consistently pushed back and maintained the client’s position that no settlement discussions would be entertained absent an examination. After Wilson Elser refused multiple settlement demands, the plaintiff provided a stipulation of discontinuance and is no longer pursuing the matter. 

Jacqueline Hattar (Partner-White Plains, NY) and Urvashi Sinha (Partner-New York, NY) obtained summary judgment on behalf of Wilson Elser’s client, a truck driver, in the New York State Supreme Court, Bronx County. The plaintiff alleged that our client was negligent in the ownership and operation of his tractor-trailer truck by illegally parking it on a Bronx roadway. As a result of the alleged accident, the plaintiff claimed to have sustained serious injuries to his right shoulder and lumbar spine, requiring two surgeries, and sought to recover the client’s $1 million policy limit. Before depositions were completed, Jackie moved for summary judgment, seeking dismissal of the plaintiff’s complaint and all cross-claims. Jackie and Urvashi argued that, based on the police investigation and witness statements, our client’s truck was legally parked and did not make contact with the plaintiff’s vehicle, which had been struck by the co-defendant’s vehicle. In opposition, the plaintiff argued that the motion was premature because depositions had not yet been completed and that triable issues of fact existed as to whether Wilson Elser’s client was lawfully parked and whether the parked truck caused or contributed to the accident. In reply, Jackie and Urvashi maintained that the plaintiff failed to submit any evidence in admissible form, such as affidavits, photographic, or video evidence, to establish that the client’s truck was illegally parked in the roadway. The court agreed with Wilson Elser’s arguments and granted the motion in all respects. Jackie drafted the motion papers, and Urvashi orally argued the motion before the court on behalf of our client. The plaintiff’s action is continuing against the co-defendants, the driver and the vehicle owner.  

Michael Lowry (Partner-Las Vegas, NV) submitted an amicus brief on behalf of the Las Vegas Defense Lawyers (LVDL) regarding a writ petition discussing how much detail the Nevada Rules of Civil Procedure (NRCP) 35 requires, both in a motion seeking an NRCP 35 exam and in the order granting that motion. The plaintiff argues for exacting specificity that includes every technique, test, procedure, and question that will be asked. However, NRCP 35 does not require the extensive degree of specificity that the plaintiff asserts, nor is it practical. LVDL’s brief notes that this is a recurring dispute that is frequently litigated and that appellate guidance would be helpful.

The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not. Background: The Construction Statute of Repose In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.  Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).  Concept Statute of Limitation (SOL) Statute of Repose (SOR) Trigger Event Accrual of cause of action (discovery of injury) Substantial completion of construction services Primary Purpose Encourages diligent prosecution of known claims Provides a date certain for the end of legal liability Duration (WA) Generally, two-to-three years for torts Six years for construction-related activities Tolling Often tolled by discovery or minority status Generally, not tollable (hard outer wall) Status of Right Bars the remedy Extinguishes the underlying right of action For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12. Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts: The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property. The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function. The Polinder Decision In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims. 1. The Integral Systems Requirement  The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose. 2. The Product Seller Exception  While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed. Impact on Asbestos Cases and Defendants The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward: Reliance on Expert Evidence Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate. Evaluating the Contractor's Role Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials. Continued Importance of Proximate Cause For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure. Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026). Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.

Q: Can an entity be liable to an employee even if it is not their employer? A: Yes, a company can be held liable under the joint-employer rule even if the company does not employ the individual. Consequences for this designation can be significant. The National Labor Relations Board (NLRB) publishes rules for determining a joint employer under the National Labor Relations Act (NLRA). Under the NLRA, an entity can have joint liability with an employer for unfair labor practices, union bargaining obligations, and even being bound by collective bargaining agreements between the employer and employee.1 History The current rule established by the NRLB went into effect on February 27, 2026. It formally reinstates the direct control joint employer test previously implemented under the first Trump Administration in 2020. The 2020 rule established the entity-friendly standard in the direct control joint employer test, replacing the 2015 standard under Browning-Ferris Industries of California, Inc., 362 NLRB No. 186. However, employers have long been subjected to a ping-pong match that appears to change the standard with each administration. After three years of implementing the 2020 rule, the NRLB in the Biden Administration revoked it and issued a broader rule in 2023 that expanded potential liability and obligations to entities. The rule proposed that an entity could be deemed an employer if the entities “share or codetermine” one or more of the employees’ essential terms and conditions of employment.2 The 2023 rule, however, was short-lived before it was thrown into uncertainty. On March 8, 2024, prior to the rule becoming effective, the U.S. District Court for the Eastern District of Texas struck down the Biden Administration’s 2023 rule.3 The Court stated the rule did not distinguish an employer from a contractual partner. The NLRB declined to appeal the Court’s decision.  New Rule Narrows the Joint Employer Analysis Following a newly-minted NLRB seated under the Trump Administration, the Board published the new rule in the Federal Register—Withdrawal of 2023 Standard for Determining Joint Employer Status, 91 Fed. Reg. 9707 (Feb. 27, 2026).4 Under this “new” 2026 rule, an entity can only be found to be a joint employer if it possesses or exercises “substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningly affects matters relating to the employment relationship with those employees.”5 The essential terms and conditions of employment are defined by the rule as: Wages, which includes determining wage rates, salary, or any other rate of pay Benefits, which includes determining fringe benefits offered to another employer’s employees, such as health insurance or pension plans Hours of work, which includes determining work schedules or work hours, including any parameters relating to overtime, of another employer’s employees Hiring, which includes determining whether or not a particular employee is hired, but not by requesting changes in staffing levels or setting minimal hiring standards Discharge, which includes deciding to terminate the employment of another employer’s employee but does not include notifying employer of misconduct, poor performance, or removing another employer’s employee to continue performing work under a contract Discipline, which includes deciding to suspend or otherwise discipline another employer’s employee but does not include notifying employer of misconduct, poor performance, or removing another employer’s employee to continue performing work under a contract Supervision, which includes instructing another employer’s employees how to perform their work or issuing employee performance views but does not include primarily telling another employer’s employees what work to perform, or where and when to perform it Direction, which includes assigning particular employees work schedules, positions, and tasks but does not include setting schedules for the completion of a project or describing the work that must be accomplished on a project Of particular note is the entity-friendly inclusion that the control must be “substantial.” Control is not substantial if exercised on a “sporadic, isolated or de minimis basis."6 NLRB’s Implementation of the Rule The Board has already begun implementing the new rule. In South Sound Inpatient Physicians, PLLC and Joint Employer Peacehealth, 19-RC-338479; 374 NLRB No. 101 (Bellingham, WA, April 30, 2026), the Board determined that PeaceHealth was not a joint employer under the new standard and reversed the Regional Director’s findings. The Board found that PeaceHealth management's participation in the hospitalist's interview, and its requirement that South Sound credential the hospitalist as a condition of employment, were insufficient to establish direct and immediate control over hiring. The Board further found that the credentialing requirements did not extend beyond setting forth minimum hiring standards. The Board also concluded that with respect to supervision, PeaceHealth’s involvement in the hospitalist’s work did not extend beyond “telling another employer’s employees what work to perform…but not how to perform it.” As to wages, the Board found any restraint on South Sound’s parameters as to what to pay employees was more of an economic reality. Finally, the Board found with respect to benefits that PeaceHealth only required that the hospitalists have malpractice insurance. It did not have a role in selecting the plan, carrier, or level of coverage. This ruling shows that the NLRB’s new rule significantly limits application of joint employer obligations even if an entity exercises some control over another entity’s employee.  Tips for Employers to Stay Up-to-Date Although the new rule is more entity friendly, entities must take steps to stay up-to-date to avoid establishing joint employer relationships with other employer’s employees, such as: Review all contracts to determine whether any provisions may be considered a joint-employer relationship under the current test. Train management and supervisors on current test to avoid inadvertent direct control over non-employees that may not be clear or reflected in contracts. Maintain communications with counsel to keep up-to-date on inevitable changes to the joint employer test and other labor developments.  It is always best practice to consult with legal counsel to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on the joint-employer rule and other employment considerations. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.  __________________________________________________________________________________________ 1 This new test directly impacts considerations under the NLRA. It does not impact joint employer tests under other laws such as Federal Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonable Agricultural Worker Protection Act. However, the Department of Labor issued a proposed rule on April 23, 2026 with a comment period through June 22, 2026 to update the current rule that was first implemented in 2021. See https://www.federalregister.gov/documents/2026/04/23/2026-07959/joint-employer-status-under-the-fair-labor-standards-act-family-and-medical-leave-act-and-migrant.  2 The Standard for Determining Joint-Employer Status – Final Rule published 10/27/2023, https://www.nlrb.gov/about-nlrb/what-we-do/the-standard-for-determining-joint-employer-status-final-rule. 3 Chamber of Commerce v. NLRB, 723 F. Supp. 3d 498, 519 (E.D. Tex. 2024).  4 Withdrawal of 2023 Standard for Determining Joint Employer Status,https://www.federalregister.gov/documents/2026/02/27/2026-03955/withdrawal-of-2023-standard-for-determining-joint-employer-status 5 Id. 6 Id.

On May 27, 2026, Governor Kathy Hochul signed New York's 2026 state budget into law. The $268.1 billion budget includes significant tort reform provisions for New York State motor vehicle litigation. The reforms took effect immediately and apply to all motor vehicle actions commenced on or after the law’s passage, other than accidents resulting in a death or property damage.  I. Shift from Pure to Modified Comparative Negligence in Motor Vehicle Cases The biggest change is to C.P.L.R. § 1411, which has long governed comparative negligence in New York. With the addition of a new subsection "b," New York now moves from a pure to a modified comparative negligence state but just for motor vehicle accident cases. Under a pure comparative negligence system, plaintiffs could recover compensation even if they were predominantly at fault. For example, a party who was 99 percent responsible for an accident could still recover one percent of the total damages. Now, under the new law, a plaintiff who is more at fault (i.e. more than 50 percent) than the other persons involved in a motor vehicle accident cannot recover. In practice, if a jury finds a car accident plaintiff is 51 percent or more at fault, it will not proceed to calculate and award damages.  II. Elimination of the 90/180-Day Serious Injury Category The tort reform also amends subsection (d) of Insurance Law § 5102 to eliminate the so-called "90/180-day" category of serious injury. Under prior law, a plaintiff could satisfy the serious injury “threshold” by demonstrating a medically determined injury of a non-permanent nature that prevented them from performing substantially all of their usual and customary daily activities for at least 90 of the 180 days immediately following the accident (e.g. going to work or school). This category faced significant criticism because it often relied on subjective, self-reported information and/or allowed someone who could go to work but didn’t to automatically meet the threshold. III. New Sequencing Requirement: Fault Before Serious Injury Another aspect is that Insurance Law § 5104(a) now requires juries to decide who is at fault for a motor vehicle accident before figuring out whether the serious injury threshold is met. Under the new rules, liability for non-economic loss (i.e., pain and suffering) isn't set until fault is determined. This means that the trier of fact must assign blame first, then assess damages afterward, specifically for non-economic losses. The new sequencing rule has significant strategic effects. Under the updated comparative negligence system for car accident cases, if the jury finds the plaintiff more than 50 percent at fault, they stop right there–no damages awarded. If the plaintiff’s fault does not exceed 50 percent, the jury then considers whether the plaintiff’s injuries satisfy the other requirements in § 5102(d). This makes trials more efficient and keeps juries from letting information about injuries bias their decision when the plaintiff is too fault-prone to recover damages. IV. Recovery Cap for Claimants Engaged in Unlawful Conduct Finally, Insurance Law Section 5104 now includes a new subsection (d). It caps non-economic loss (i.e., pain and suffering) recovery for a motor vehicle accident at $100,000 when the plaintiff is in one of three specific groups (unless the accident results in death): The plaintiff was operating an uninsured motor vehicle in violation of Article 6 of the Vehicle and Traffic Law (with an exception for lapses in coverage of fewer than 30 days). The plaintiff was operating a motor vehicle while impaired and has been convicted of that offense. The plaintiff was operating a motor vehicle in the commission of a felony or in immediate flight afterwards, with a conviction for the same. While the situations described above are thankfully rare, they do occur. The new law will prevent a significant recovery from others by drivers who were uninsured, intoxicated, and/or felons. The authors acknowledge the contributions made by summer staff assistant Christopher DeMicco.