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.

John Podesta (Partner-San Francisco, CA), Wendy Testa (Partner-Philadelphia, PA) and Andrew Rossi (Associate-Philadelphia, PA) will present the Wilson Elser Forum webinar “Contracts with Teeth – Effective Defenses and Risk Transfer” on June 10, 2026. Some of the strongest defenses available to parties engaged in disputes are found in the applicable contract documents. A strong contract serves as a sword to a party proactively pursuing a remedy or risk transfer from another contracting party. Conversely, a well-negotiated contract can effectively shield a contracting party from significant liability exposure that is not reasonably related to that party's actual professional services. Contractual risk management is therefore critical, along with the need to evaluate certain risk that may be required to secure the client, obtain business, or “win” a project. It also requires the risk management team – claims professional, broker, and defense counsel – to adjust its strategy when handling contractual disputes, particularly when faced with challenging contract language and decisions on which players to consider for joinder and/or potential risk transfer.

Lawrence Lee Washburn (Partner-Atlanta, GA) and Ryan Williams (Partner-Denver, CO) will present the Wilson Elser Forum webinar “When AI Fails: Risks of Overreliance on Artificial Intelligence in Insurance Claims and Defense Litigation” on June 11, 2026. The session examines how the increasing adoption of AI across the insurance industry creates new exposures when claims professionals defer to algorithmic outputs at the expense of exercising independent professional judgment. Presenters will address how AI tools are currently being used in claims evaluation, reserving, and coverage analysis; the specific risks of uncritical reliance on AI-generated outputs; the professional and ethical obligations that cannot be delegated to technology; what assigned defense counsel are doing with AI tools in litigation – including legal research, drafting, and case strategy – and how that usage affects the quality and integrity of the defense provided. Also discussed are best practices for claims professionals to verify and supervise AI-assisted work product from both internal and external sources, and emerging regulatory and case law developments governing AI use in insurance and legal practice.

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.

The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026. The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA. While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift. HUD’s New Guidance on Assistance Animals Under the FHA HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.1 The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services.  Open Issues for Housing Providers 1. Breed and Weight Restrictions The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely. 2. Private Rights of Action It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts. A. Section 504 of the Rehabilitation Act Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs. B. State and Local Law Conflicts The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position. Practical Implications The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case.  The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.2 In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis.  It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.3 In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.4 The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold. ________________________________________________________________________________________ 1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release]. 2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025). 3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024). 4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).

Gregory Shapiro (Partner-White Plains, NY) secured summary judgment in a medical malpractice case before the New York State Supreme Court, Kings County, on behalf of Wilson Elser’s clients, a medical center client, an attending obstetrician/gynecologist (OB/GYN), and a medical resident previously dismissed through stipulation. The plaintiff allegedly sustained a nerve injury, causing lower extremity weakness and paresthesia, due to the negligent performance of a hysterectomy. She alleged a failure to position and reposition her properly during surgery, a failure to communicate among providers during surgery, and a failure to prevent nerve injury. The plaintiff also asserted claims relating to the post-operative period, alleging that our client failed to timely diagnose an iatrogenic nerve injury, disregarded complaints and clinical signs and symptoms indicative of nerve injury, failed to prescribe appropriate medications or order necessary diagnostic testing, and failed to obtain appropriate specialist consultations. Further allegations included a lack of informed consent and Res Ipsa Loquitor. Through the affirmation of an OB/GYN expert, Greg established that the surgery was medically indicated, given the patient’s longstanding adenomyosis and lack of success in controlling bleeding with conservative measures. The expert opined that the straight vaginal hysterectomy was the appropriate procedure and was performed in accordance with the accepted standard of care. Reference was made to both physicians’ deposition testimony detailing the efforts undertaken to properly position the patient before surgery and periodically reposition her legs during surgery to mitigate the risk of nerve injury. Greg argued that nerve injury is a known complication of hysterectomy, a risk that was repeatedly discussed with the patient and to which she provided informed consent. In opposition, the plaintiff submitted an affirmation from an OB/GYN expert who relied on positioning standards applicable to total laparoscopic hysterectomy, despite the plaintiff having undergone a straight vaginal hysterectomy. In his reply, Greg cited Palagye v. Loulmet, in which the Second Department held that an expert opinion based on an incorrect understanding of the procedure performed is insufficient to raise an issue of fact. The plaintiff also failed to meaningfully address arguments regarding dismissal of the remaining claims. Granting Wilson Elser’s motion, the judge noted that the plaintiff’s expert improperly assumed a departure based on the absence of documentation reflecting positioning interventions applicable to a different surgical procedure. The court agreed with Wilson Elser’s expert’s testimony that the plaintiff was properly positioned and repositioned throughout the surgery, as supported by the providers’ deposition testimony. Accordingly, the court dismissed the action in its entirety, quashing the plaintiff’s $4 million settlement demand.  

Denise Motta (Of Counsel-Louisville, KY) has been appointed Vice Chair of the American Bar Association Tort & Insurance Practice Section’s Alternative Dispute Resolution (ADR) Committee. The appointment further reflects Denise’s leadership in the field of alternative dispute resolution, where she also serves as Chair of DRI's ADR Committee and Vice Chair of the Kentucky Bar Association’s ADR Section. An experienced arbitrator and mediator, Denise is a panel member with the American Arbitration Association. In addition to her ADR leadership roles, Denise is a strategic advocate for clients in construction matters and complex business and injury disputes.

Wilson Elser maintained its prestigious rankings across nine departments in the Chambers USA Guide 2026. In addition, eleven attorneys earned coveted individual recognition. Los Angeles partner David Simantob is recognized in the Insurance: Insurer, California category for the first time this year. He joins a distinguished group of Wilson Elser attorneys who have earned Chambers recognition for two or more consecutive years. Firm Recognition InsuranceColorado New Jersey  Texas Insurance: Dispute Resolution: InsurerNew York Illinois Insurance: InsurerCalifornia Transportation: NTSB Specialists USA Nationwide Transportation: Shipping/Maritime: Litigation (outside New York) Cannabis Law: USA Nationwide Individual Rankings  J. Price Collins (Partner-Dallas, TX) Insurance Michael Harowski (Partner-New Orleans, LA) Transportation: Shipping/Maritime: Litigation (outside New York) Jonathan E. Meer (Partner-New York, NY) Insurance Dispute Resolution: Insurer Thomas F. Quinn (Partner- Madison, NJ) Insurance Dean A. Rocco (Partner-Los Angeles, CA) Cannabis Law: USA Nationwide H. Jake Rodriguez (Partner-New Orleans, LA) Transportation: Shipping/Maritime: Litigation (outside New York) David Simantob (Partner-Los Angeles, CA) Insurance: Insurer Ian A. Stewart (Partner-Los Angeles, CA) Cannabis Law: USA Nationwide Katherine E. Tammaro (Partner-Madison, NJ) Insurance Thomas W. Tobin (Senior Counsel-White Plains, NY) Transportation: NTSB Specialists USA Nationwide Jane E. Young (Partner-Denver, CO) Insurance Chambers USA is the leading legal directory ranking top lawyers and law firms across the United States. The rankings are based on rigorous market analysis and independent research conducted by a dedicated team of Chambers researchers.

Kelsi Piatkowski (Partner-Houston, TX) and Servando Rivas (Associate-Houston, TX) prevailed on behalf of a Fortune 500 company that is among the nation’s largest hardware retailers. After previously obtaining a summary judgment and dismissal in the U.S. District Court for the Eastern District of Texas, the plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit. The case arose from an allegation that a cart failed, causing injury to one of the plaintiffs. On appeal, plaintiffs argued they had raised a genuine issue of material fact regarding the client's constructive knowledge of the allegedly defective cart. In a per curiam opinion, the Fifth Circuit affirmed the district court’s order on summary judgment, agreeing that the plaintiffs failed to provide sufficient temporal evidence under Texas's “time-notice rule.”

Lawrence Lee Washburn (Partner-Atlanta, GA) and Ryan Williams (Partner-Denver, CO) will present the Wilson Elser Forum webinar “When AI Fails: Risks of Overreliance on Artificial Intelligence in Insurance Claims and Defense Litigation” on June 11, 2026. The session examines how the increasing adoption of AI across the insurance industry creates new exposures when claims professionals defer to algorithmic outputs at the expense of exercising independent professional judgment. Presenters will address how AI tools are currently being used in claims evaluation, reserving, and coverage analysis; the specific risks of uncritical reliance on AI-generated outputs; the professional and ethical obligations that cannot be delegated to technology; what assigned defense counsel are doing with AI tools in litigation – including legal research, drafting, and case strategy – and how that usage affects the quality and integrity of the defense provided. Also discussed are best practices for claims professionals to verify and supervise AI-assisted work product from both internal and external sources, and emerging regulatory and case law developments governing AI use in insurance and legal practice.

John Podesta (Partner-San Francisco, CA), Wendy Testa (Partner-Philadelphia, PA) and Andrew Rossi (Associate-Philadelphia, PA) will present the Wilson Elser Forum webinar “Contracts with Teeth – Effective Defenses and Risk Transfer” on June 10, 2026. Some of the strongest defenses available to parties engaged in disputes are found in the applicable contract documents. A strong contract serves as a sword to a party proactively pursuing a remedy or risk transfer from another contracting party. Conversely, a well-negotiated contract can effectively shield a contracting party from significant liability exposure that is not reasonably related to that party's actual professional services. Contractual risk management is therefore critical, along with the need to evaluate certain risk that may be required to secure the client, obtain business, or “win” a project. It also requires the risk management team – claims professional, broker, and defense counsel – to adjust its strategy when handling contractual disputes, particularly when faced with challenging contract language and decisions on which players to consider for joinder and/or potential risk transfer.

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.

The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026. The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA. While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift. HUD’s New Guidance on Assistance Animals Under the FHA HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.1 The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services.  Open Issues for Housing Providers 1. Breed and Weight Restrictions The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely. 2. Private Rights of Action It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts. A. Section 504 of the Rehabilitation Act Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs. B. State and Local Law Conflicts The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position. Practical Implications The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case.  The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.2 In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis.  It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.3 In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.4 The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold. ________________________________________________________________________________________ 1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release]. 2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025). 3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024). 4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).

Gregory Shapiro (Partner-White Plains, NY) secured summary judgment in a medical malpractice case before the New York State Supreme Court, Kings County, on behalf of Wilson Elser’s clients, a medical center client, an attending obstetrician/gynecologist (OB/GYN), and a medical resident previously dismissed through stipulation. The plaintiff allegedly sustained a nerve injury, causing lower extremity weakness and paresthesia, due to the negligent performance of a hysterectomy. She alleged a failure to position and reposition her properly during surgery, a failure to communicate among providers during surgery, and a failure to prevent nerve injury. The plaintiff also asserted claims relating to the post-operative period, alleging that our client failed to timely diagnose an iatrogenic nerve injury, disregarded complaints and clinical signs and symptoms indicative of nerve injury, failed to prescribe appropriate medications or order necessary diagnostic testing, and failed to obtain appropriate specialist consultations. Further allegations included a lack of informed consent and Res Ipsa Loquitor. Through the affirmation of an OB/GYN expert, Greg established that the surgery was medically indicated, given the patient’s longstanding adenomyosis and lack of success in controlling bleeding with conservative measures. The expert opined that the straight vaginal hysterectomy was the appropriate procedure and was performed in accordance with the accepted standard of care. Reference was made to both physicians’ deposition testimony detailing the efforts undertaken to properly position the patient before surgery and periodically reposition her legs during surgery to mitigate the risk of nerve injury. Greg argued that nerve injury is a known complication of hysterectomy, a risk that was repeatedly discussed with the patient and to which she provided informed consent. In opposition, the plaintiff submitted an affirmation from an OB/GYN expert who relied on positioning standards applicable to total laparoscopic hysterectomy, despite the plaintiff having undergone a straight vaginal hysterectomy. In his reply, Greg cited Palagye v. Loulmet, in which the Second Department held that an expert opinion based on an incorrect understanding of the procedure performed is insufficient to raise an issue of fact. The plaintiff also failed to meaningfully address arguments regarding dismissal of the remaining claims. Granting Wilson Elser’s motion, the judge noted that the plaintiff’s expert improperly assumed a departure based on the absence of documentation reflecting positioning interventions applicable to a different surgical procedure. The court agreed with Wilson Elser’s expert’s testimony that the plaintiff was properly positioned and repositioned throughout the surgery, as supported by the providers’ deposition testimony. Accordingly, the court dismissed the action in its entirety, quashing the plaintiff’s $4 million settlement demand.  

Denise Motta (Of Counsel-Louisville, KY) has been appointed Vice Chair of the American Bar Association Tort & Insurance Practice Section’s Alternative Dispute Resolution (ADR) Committee. The appointment further reflects Denise’s leadership in the field of alternative dispute resolution, where she also serves as Chair of DRI's ADR Committee and Vice Chair of the Kentucky Bar Association’s ADR Section. An experienced arbitrator and mediator, Denise is a panel member with the American Arbitration Association. In addition to her ADR leadership roles, Denise is a strategic advocate for clients in construction matters and complex business and injury disputes.

Wilson Elser maintained its prestigious rankings across nine departments in the Chambers USA Guide 2026. In addition, eleven attorneys earned coveted individual recognition. Los Angeles partner David Simantob is recognized in the Insurance: Insurer, California category for the first time this year. He joins a distinguished group of Wilson Elser attorneys who have earned Chambers recognition for two or more consecutive years. Firm Recognition InsuranceColorado New Jersey  Texas Insurance: Dispute Resolution: InsurerNew York Illinois Insurance: InsurerCalifornia Transportation: NTSB Specialists USA Nationwide Transportation: Shipping/Maritime: Litigation (outside New York) Cannabis Law: USA Nationwide Individual Rankings  J. Price Collins (Partner-Dallas, TX) Insurance Michael Harowski (Partner-New Orleans, LA) Transportation: Shipping/Maritime: Litigation (outside New York) Jonathan E. Meer (Partner-New York, NY) Insurance Dispute Resolution: Insurer Thomas F. Quinn (Partner- Madison, NJ) Insurance Dean A. Rocco (Partner-Los Angeles, CA) Cannabis Law: USA Nationwide H. Jake Rodriguez (Partner-New Orleans, LA) Transportation: Shipping/Maritime: Litigation (outside New York) David Simantob (Partner-Los Angeles, CA) Insurance: Insurer Ian A. Stewart (Partner-Los Angeles, CA) Cannabis Law: USA Nationwide Katherine E. Tammaro (Partner-Madison, NJ) Insurance Thomas W. Tobin (Senior Counsel-White Plains, NY) Transportation: NTSB Specialists USA Nationwide Jane E. Young (Partner-Denver, CO) Insurance Chambers USA is the leading legal directory ranking top lawyers and law firms across the United States. The rankings are based on rigorous market analysis and independent research conducted by a dedicated team of Chambers researchers.

Kelsi Piatkowski (Partner-Houston, TX) and Servando Rivas (Associate-Houston, TX) prevailed on behalf of a Fortune 500 company that is among the nation’s largest hardware retailers. After previously obtaining a summary judgment and dismissal in the U.S. District Court for the Eastern District of Texas, the plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit. The case arose from an allegation that a cart failed, causing injury to one of the plaintiffs. On appeal, plaintiffs argued they had raised a genuine issue of material fact regarding the client's constructive knowledge of the allegedly defective cart. In a per curiam opinion, the Fifth Circuit affirmed the district court’s order on summary judgment, agreeing that the plaintiffs failed to provide sufficient temporal evidence under Texas's “time-notice rule.”

Lawrence Lee Washburn (Partner-Atlanta, GA) and Ryan Williams (Partner-Denver, CO) will present the Wilson Elser Forum webinar “When AI Fails: Risks of Overreliance on Artificial Intelligence in Insurance Claims and Defense Litigation” on June 11, 2026. The session examines how the increasing adoption of AI across the insurance industry creates new exposures when claims professionals defer to algorithmic outputs at the expense of exercising independent professional judgment. Presenters will address how AI tools are currently being used in claims evaluation, reserving, and coverage analysis; the specific risks of uncritical reliance on AI-generated outputs; the professional and ethical obligations that cannot be delegated to technology; what assigned defense counsel are doing with AI tools in litigation – including legal research, drafting, and case strategy – and how that usage affects the quality and integrity of the defense provided. Also discussed are best practices for claims professionals to verify and supervise AI-assisted work product from both internal and external sources, and emerging regulatory and case law developments governing AI use in insurance and legal practice.

John Podesta (Partner-San Francisco, CA), Wendy Testa (Partner-Philadelphia, PA) and Andrew Rossi (Associate-Philadelphia, PA) will present the Wilson Elser Forum webinar “Contracts with Teeth – Effective Defenses and Risk Transfer” on June 10, 2026. Some of the strongest defenses available to parties engaged in disputes are found in the applicable contract documents. A strong contract serves as a sword to a party proactively pursuing a remedy or risk transfer from another contracting party. Conversely, a well-negotiated contract can effectively shield a contracting party from significant liability exposure that is not reasonably related to that party's actual professional services. Contractual risk management is therefore critical, along with the need to evaluate certain risk that may be required to secure the client, obtain business, or “win” a project. It also requires the risk management team – claims professional, broker, and defense counsel – to adjust its strategy when handling contractual disputes, particularly when faced with challenging contract language and decisions on which players to consider for joinder and/or potential risk transfer.

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.

The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026. The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA. While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift. HUD’s New Guidance on Assistance Animals Under the FHA HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.1 The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services.  Open Issues for Housing Providers 1. Breed and Weight Restrictions The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely. 2. Private Rights of Action It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts. A. Section 504 of the Rehabilitation Act Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs. B. State and Local Law Conflicts The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position. Practical Implications The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case.  The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.2 In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis.  It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.3 In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.4 The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold. ________________________________________________________________________________________ 1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release]. 2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025). 3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024). 4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).