Persuasively Bad | U.S. Chamber of Commerce

Persuasively Bad

The U.S. Department of Labor (DOL) today released its final “persuader” rule, a 446 page behemoth that has the simple goal of making it more difficult for employers to discuss the pros and cons of unionization with their employees. 

The persuader rule has been on the DOL agenda for nearly five years, as this blog previously reported.  Its first iteration came out in June 2011 and received substantial pushback from the business and legal communities, including the American Bar Association.  Congress also voiced its disapproval in a letter to then-Acting Secretary of Labor Seth Harris asking the department to withdraw the proposed rule. 

What is at issue is the so-called “advice exemption” under the Labor Management Reporting and Disclosure Act (LMRDA), which explicitly states that labor relations consultants who advise employers about certain matters are not required to report information about their consulting arrangement with DOL.  The Department’s longstanding—since 1962—interpretation of that provision held that the exemption covered the vast majority of labor consulting arrangements provided that the consultants did not speak directly with employees to persuade them one way or another about joining a union.  

However, DOL apparently has been wrong for over 50 years, at least that's what the current administration seems to think.

As was the case with the proposal, the final rule vastly expands the reporting requirements to correct what it calls a “disclosure vacuum.”  According to the instructions on the revised disclosure forms, the advice exemption is removed for consulting agreements even if a consultant has no direct contact with employees if they engage in the following activities:

(a) plans, directs, or coordinates activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees;

(b) provides material or communications to the employer, in oral, written, or electronic form, for dissemination or distribution to employees;

              (c) develops or implements personnel policies, practices, or actions for the employer.

It further identifies several examples of what would trigger the filing requirement:

  • planning or conducting individual or group employee meetings;
  • training supervisors or employer representatives to conduct employee meetings;
  • coordinating or directing the activities of supervisors or employer representatives;
  • establishing or facilitating employee committees;
  • drafting, revising, or providing speeches, written material, website, audiovisual or multimedia content for presentation, dissemination, or distribution to employees, directly or indirectly (including the sale of “off-the-shelf” materials where the consultant assists the employer in the selection of such materials, except as noted below where such selection is made by trade associations for member-employers);
  • developing employer personnel policies designed to persuade, such as when a consultant, in response to employee complaints about the need for a union to protect against arbitrary firings, develops a policy under which employees may arbitrate grievances;
  • identifying employees for disciplinary action, reward, or other targeting based on their involvement with a union representation campaign or perceived support for the union;
  • coordinating the timing and sequencing of union avoidance tactics and strategies.

That’s quite a list.  Of course, it’s meant to be expansive because unions hope it will discourage attorneys from offering labor relations services, which would tilt the playing field to organized labor’s advantage.  Moreover, by limiting employer access to counsel and stifling employer speech, unions also will have more opportunities to catch unsuspecting employers allegedly running afoul of complicated labor regulations. 

Now that the final rule is out, time will tell whether the courts will agree with DOL’s aggressive stance on this issue.