U.S. Department of Labor Rescinds Pro-Union “Persuader Rule”
This week, the U.S. Department of Labor (DOL) rescinded an Obama-era rule that would have required extensive public disclosure by attorneys hired to combat union organizing efforts and the employers who retain them.
The federal Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) requires unions, “consultants,” and employers to file reports and publicly disclose expenditures for certain labor-management activities. Historically, the law has only
required employers and their consultants (including attorneys) to file reports when engaged in direct persuader activities – like speaking directly to employees about union issues during a union organizing campaign. The new rule, however, would have extended those reporting requirements when attorneys engaged in indirect persuader activities – like advising employers on union avoidance strategies or assisting with preparation of handouts or talking points for managers and supervisors discussing union issues with employees – which have traditionally been exempt.
The DOL’s decades-old “advise” exception to the reporting requirement provides that advice of
counsel constitutes indirect persuader activity for which the reporting requirements do not apply. The new rule would have gutted the exception and specifically required employers and their attorneys to report not only when attorneys directly persuaded workers, but also when attorneys undertook certain indirect persuader activities, such as: 1) planning, directing, or coordinating managers to persuade workers; 2) providing persuader materials to employers to disseminate to workers; 3) conducting union avoidance seminars; and 4) developing or implementing personnel policies or actions to persuade workers.
In announcing the DOL’s rescission of the rule, DOL’s Office of Policy’s
Assistant Secretary, Nathan Mehrens, explained, “[f]or decades, the Department enforced an easy-to-understand regulation: Personal interactions with employees done by employers’ consultants triggered reporting obligations, but advice between a client and attorney did not.” “By rescinding this Rule,” Mehrens continued, “the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government.”
Under the Trump administration, we expect further rollback of Obama-era labor and employment rules is on the horizon, including a likely reduction of the proposed new minimum salary level of $47,476 required for white
collar exemptions under the federal Fair Labor Standards Act (FLSA). We will be sure to alert you of those changes as they occur.
If you have questions or if you would like assistance with this or any other matter, please do not hesitate to contact us.