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Few outside the confines of its own political appointees would consider the current administration friendly to the business community. From aggressive rulemakings to “shaming” campaigns against employers to punitive fines, businesses of all stripes are suffering. But this is just part of the story, and other actions are more subtle. Take, for example, the Department of Labor’s (DOL) campaign to needlessly ensnare unwary employers in a regulatory scheme known as the persuader rule.
Most business are unaware of the persuader rule, and for good reason. Almost none need to comply with it. Under the rule, if an employer hires an outside law firm or consultant to speak to employees about whether or not to join a union, that employer must file financial reports with the DOL indicating whom they have hired, how much they are paying, and what services are being provided. These filings are available on line for anyone, particularly unions, to see. Few businesses file persuader reports, however, because what triggers the filing requirement is that the law firm or consultant must speak to employees, not simply provide advice to the employer about union issues.
Unfortunately, from DOL’s perspective, this has resulted in a minimal number of persuader filings. To “encourage” more employers to file reports, DOL has taken to combing through the National Labor Relations Board’s database, looking for any and all cases where unions have filed an election petition. Those employers targeted by such a petition soon receive an ominous looking DOL letter politely informing them that they “may” have persuader reporting obligations.
This could, perhaps, be considered “compliance assistance” except that DOL has no idea if these employers have engaged in activity that would require persuader filings and thus have a need to comply with anything. Instead the DOL simply seems to be casting a net and hoping someone will inadvertently swim into it.
How many employers have fallen for this ruse is impossible to estimate. However, one rough measure is the receipt of LM-20 forms filed with the DOL by persuaders, which increased from 183 in 2009 to more than 570 in 2013. Regardless of how many reports the DOL actually gets, sending menacing letters to businesses that have done nothing wrong seems a waste of taxpayer dollars, and yet another jab at America’s employers.