Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
February 02, 2024
On January 31, Amazon filed a brief in the U.S. District Court for the Western District of Washington contesting the authority of the Department of Labor (DOL) to enforce subpoenas against the company related to so-called “persuader” reports. This filing may complicate DOL’s ongoing end run around the law.
Persuader reports were established by the 1959 Labor-Management Reporting and Disclosure Act (LMRDA). That statute is enforced by DOL’s Office of Labor-Management Standards (OLMS).
The bulk of the LMRDA deals with union financial transparency and internal democratic practices. However, it also requires employers to file reports if they hire third parties to sway their workers’ opinions about unions. These are referred to as persuader reports and include information about the payments made to those third parties. Congress believed that workers should know if someone speaking to them about unions was actually speaking on behalf of management and determined that these reports were the best way to accomplish that.
That said, the statute includes a specific exemption from filing for the activities of a company’s own managers (see section 203(e)). Since 1959, that exemption has been understood and observed by both Democratic and Republican administrations and has been utterly non-controversial.
However, OLMS asserts that everyone has gotten it wrong for the past 65 years. OLMS has been sending letters to companies claiming that they owe DOL persuader reports for expenses related to sending their own management staff out to talk to workers about unions. This not only flies in the face of the statutory exemption and DOL’s own interpretive manual, but it also defies common sense. If the VP for HR talks to you about unions, it’s obvious he is speaking on behalf of management. You don’t need a persuader report to figure that out.
Despite all that, OLMS has ramped up the intensity by including subpoenas with its requests to file. These are quite invasive and demand names of executives who traveled, expenses related to that travel, dates, where individuals may have stayed, and more. And at least in the case of Amazon, OLMS has told the company it cannot guarantee the confidentiality of this information. In other words, unions may get access to it. Making matters worse, this massive change in how the statute is interpreted and enforced has taken place without a formal rulemaking, opinion letter, or guidance document of any kind.
This is quite extraordinary. But employers have started pushing back. Initially, Starbucks contested an OLMS subpoena in court. In that case, the judge ruled that OLMS has the authority to issue subpoenas in pursuit of an investigation of a potential LMRDA violation. He did not get to the question of whether DOL’s interpretation of the underlying statute was correct.
This is where the new Amazon filing gets interesting. In it, Amazon flat out admits they engaged in the conduct OLMS alleges, i.e., sending executives out to talk to workers. They even have offered to give OLMS the amounts that were spent on such travel, as well as job descriptions and titles of those who traveled (although not individual names since past disclosures have reportedly resulted in doxing and harassment of the named executives).
To put this more succinctly, OLMS has accused Amazon of not filing a persuader report. Amazon has admitted that it did not. Thus, there is no longer a need for investigative subpoenas because the target has already confessed to the alleged crime.
In a normal world, what would happen now is that OLMS would take Amazon to court to force them to file a persuader report, and it would be up to a judge to determine if the statutory exemption applies. But when it comes to the Biden administration’s labor policy, we are not living in a normal world.
It is highly unlikely OLMS wants to put its novel interpretation of the LMRDA in front of a judge. Losing would put an end to their skirting of the law. Instead, one suspects, the agency simply wants to continue harassing employers with subpoenas.
Indeed, OLMS gave the game away when, in response to Amazon’s offer of information, OLMS refused to settle the matter. Instead, it insisted on filing subpoenas that would require disclosure of personal information about certain Amazon managers (see note above about harassment and doing).
If the District Court agrees that Amazon has provided OLMS with the information it needs to conclude its investigation, employers may have discovered a way to put an end to the agency’s regime of harassment — confess to the alleged crime and call DOL’s bluff.
There are instances where employers should file persuader reports, and those instances are clearly covered in the statute and the OLMS interpretive manual. If DOL thinks everyone has gotten the law wrong for the past six decades, they should be willing to make that argument in front of a judge.
That, however, is likely a course the Department of Labor would rather not take. Issuing baseless subpoenas is surely more fun than being rebuked in court.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.