This Week at Work

The episode delivers genuine substantive content - the four-factor vertical joint employer test, the distinction between reserved vs. actual control, and the EEOC enforcement priorities - but a large portion is consumed by banter, episode count references, and repetitive summaries that a working HR professional would already know.

“whether they can hire or fire the worker...whether they supervise and control the worker's schedule or conditions of employment to a substantial degree...whether they determine the workers rate of pay and method of payment...whether they maintain the employment records”

“The proposed rule states that the ability, power or reserved right to act in relation to the worker remains relevant, but that actual exercise and control is much more relevant”

This is almost entirely a descriptive legal update - summarising what the proposed rule says rather than offering novel analysis, contrarian perspective, or first-principles reasoning. The only mildly original observation is linking Looper Bright to the pendulum-swing problem, and even that is underdeveloped.

“the Luper Bright decision of course said that uh, it's the courts that need to make these interpretations, not the administrative agencies...it will stop that pendulum from swinging so wildly”

“it sort of synthesizes those uh, court decisions into a rule that hopefully we can get used to and not have to change the next time the presidential administration changes”

Bert Garland is a shareholder at Ogletree Deakins, a leading employment defence firm, making him a legitimate practitioner rather than a thought-leader or career podcaster; however, the conversation stays at a general advisory level and never surfaces the kind of at-scale war stories or nuanced case experience that would justify a higher score.

“This is the Department of Labor's first attempt since 2021 to craft a joint employer standard across the Fair Labor Standards act, the Family and Medical Leave act, and other particular laws”

“The DOL rescinded, uh, as soon as Biden's DOL, uh came into play, uh, they rescinded a 2020 rule that was from the Trump administration that focused really narrowly on actual control and was largely vacated by a court”

The episode names specific statutes (FLSA, FMLA, NLRA), specific Supreme Court cases (Students for Fair Admissions, Muldrow, Groff, Bostock, Looper Bright), and a concrete 60-day comment window, which is meaningful; however, there are no data points, dollar figures, client case studies, or named companies illustrating real liability outcomes.

“the Equal Employment Opportunity Commission issued its new national enforcement plan for fiscal years 2025 through 2029”

“the prior Trump administration rule, administration's rule that had uh, a strict requirement of actual control while acknowledging that a reserve right alone is insufficient”

Phil draws on his own HR background to generate practical hypotheticals (temp pay negotiation, calling the agency to remove a worker) that add texture to abstract legal points, but there is no genuine pushback, no probing of edge cases or weaknesses in the proposed rule, and several minutes are lost to introductory banter and self-promotion.

“we would work with the agency to get certain temporary um, providers, uh, employees temp help at a certain rate of pay so we could retain them...I'm going to guess some of that still happens today”

“you'll have a manager, a supervisor, someone that's in charge of...someone's productivity...and they'll call the agency...and they'll say, hey, I don't want this person back tomorrow. Bring me someone else. Does that qualify as firing the person?”