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Employment Blog

DOL Plans to Take Final Action on Revised Persuader Rules: Employer Community Remains Unconvinced

Authored by Ruder Ware Attorneys
Posted on March 22, 2013
Filed under Employment

According to the federal Department of Labor (DOL), it plans to publish a final rule in April 2013 revising its so-called "persuader rules" under the Labor-Management Reporting and Disclosure Act. The "persuader rules" have long obligated employers to disclose, in writing, certain activities aimed at thwarting union organization tactics but only under exceptional circumstances where labor-relations consultants or attorneys directly address employees. However, if the DOL has its way, that will soon change, and employers will be required to publicly report information including the identities of labor-relations attorneys, the specific legal activities these lawyers are hired to perform, and the legal expenses incurred in resisting union organizing efforts (information germane to union organizing campaigns that cause local union business agents to salivate). The DOL's revisions, which have quietly moved along without making waves, are expected by many to cause a tsunami in the labor-relations field.

Under the DOL''s current "persuader rules," employers must disclose their consultant's and legal advisor's activities designed to persuade employees concerning whether to exercise collective bargaining rights (a battle for the hearts and minds of rank-and-file employees). However, the present "persuader rules" specifically exempt from disclosure/reporting activities that constitute "giving or agreeing to give advice" (the so-called "advice" exemption). Significantly, DOL's long-standing interpretation of the "advice" exemption is that disclosure/reporting is not required as long as the consultant or labor-relations lawyer has no direct contact with employees (meaning attorneys are free to orchestrate election campaigns, prepare videos and author speeches in the absence of direct contact). In other words labor-relations consultants and attorneys are presently free to provide employers with advice or materials that employers may directly use for purposes of persuading employees about the exercise of collective bargaining rights because this is only indirect contact with employees (e.g., ghost-written talking points for supervisory personnel to share with potential bargaining-unit members).

As referenced above, in April 2013, the DOL expects to move ahead with a final rule to narrow the scope of the advice exemption meaning the exemption will no longer apply to the following (underscores added for emphasis):

  • An oral or written recommendation regarding a decision or course of conduct
  • All actions, conduct, or communications that have a direct or indirect object to persuade employees
  • Providing material or communications to, or engaging in other actions, conduct or communication on behalf of the employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively

Not surprisingly, this development has not been well received by those within the employer community. In the next few weeks, the current administration is expected to again bolster organized labor's efforts to recapture its past prominence so stay tuned (more administrative paperwork, another added bonus).