June 23, 2011
On June 22, the Department of Labor formally proposed a rule
to more stringently regulate so-called “persuader” activity. Persuader activity refers to steps that employers may take to understand and respond to union organizing campaigns.
Under current law, employers who hire law firms or consultants to engage in persuader activity are required to file financial disclosure forms with the U.S. Department of Labor (as are the law firms and consultants). However, there is an exemption. Typically the reporting requirement is triggered only if the law firm or consultant speaks directly to workers. If they are providing advice to the employer, all parties are exempt from the filing requirement.
Unions have long sought to do away with the advice exemption because it allows employers to learn how to provide their side of the story to workers. Despite union opposition, the current exemption has remained established policy almost without interruption since the underlying statute, the Labor Management Reporting and Disclosure Act (LMRDA), was signed in 1959. Both Democratic and Republican administrations have found it consistent with Congressional intent under the LMRDA.
But now, with unions essentially running the Department of Labor, the agency has no qualms about casting aside longstanding policy. While the Department can’t simply junk the advice exemption, since it appears in the statute, by changing their interpretation of the word “advice” they can achieve almost the same result.
Under this proposed new interpretation, seemingly innocent activities such as planning meetings with employees, helping establish employer policies, training supervisors on union issues, providing vulnerability assessments, hosting conferences relating to unions and designing employee surveys would no longer count as providing advice and would trigger extensive financial disclosure requirements. In fact, virtually any contact with a lawyer or consultant with regard to a union issue would require reporting. This would be the case even in the absence of any organizing activity.
On these financial disclosure forms an employer would have to indicate who they have hired, the nature of the agreement, what services are being provided, which specific workers they are aimed at and how much is being paid (lawyers and consultants would have to file similar forms). All of this information would be posted on the Department of Labor’s web site for union organizers to see.
The result is that employers would be less likely to seek help from law firms or consultants, which would also be less likely to offer such services. Left without appropriate legal guidance on how to respond to union organizing activity, many employers may give up their legal right to engage. And ultimately that is the Department’s goal — with employers defenseless unions will have a much easier time taking over a workplace.