Effective Date of Persuader Rule Affects Employers’ Decisions to Retain Advisors

By Mitzi D. Wyrick

The United States Department of Labor’s (“DOL”) “persuader rule,” which requires employers and their advisors (including employers’ attorneys) to disclose publicly any advice that directly or indirectly persuades employees regarding union organizing or collective bargaining activity, took effect on April 25, 2016.  Litigation is pending to enjoin the enforcement of the rule because the broad sweep of the persuader rule now requires public reporting of what had been previously exempted services that are often provided by labor lawyers and consultants to their clients in confidence.  Examples of such activities include providing material or communications to employers for dissemination to employees; conducting union avoidance training; and developing personnel policies or practices that are intended to influence or persuade employees regarding their rights to engage in union organizing activities or other activity protected by the National Labor Relations Act.

It is important to note that the persuader rule applies only to persuader arrangements and agreements made on or after July 1, 2016.  In one of the pending cases to enjoin the enforcement of the persuader rule, the DOL filed a status report taking the position that advice given pursuant to

Split Decision by the U.S. Supreme Court Results in Union Win

By Michelle High

For decades, “fair share” fees have been justified as a mechanism to help unions cover the costs associated with collective bargaining.  In the 1977 case of Abood v. Detroit Board of Education, the U.S. Supreme Court ruled that compulsory union dues are unconstitutional, but unions could collect fees necessary to cover costs such as those associated with collective bargaining.  Consistent with this notion, “agency shop” laws currently exist in more than twenty states.  These laws require members of a unionized profession to have to pay “fair share” or “agency” fees even if they are not members of the union.  California is one such state.

In Friedrichs v. California Teachers Association, Rebecca Friedrichs and nine other California teachers objected to being forced to support the California Teachers Association and challenged the imposition of the associated fees.  They have argued that requiring non-union members to pay fair share fees is

The Impact of Justice Scalia’s Death on This Term’s Employment-Related Cases

By Sean G. Williamson

The recent and unexpected death of Justice Antonin Scalia at a West Texas ranch may affect the decisions in several employment-related cases pending before the U.S. Supreme Court this term.  The nine-member body—now reduced to eight—faces a variety of controversial issues predicted to divide the Court along ideological lines.  Prior to Scalia’s passing, the Court generally could be described as containing four conservatives and four liberals, with Justice Anthony Kennedy providing the swing vote.  Without Scalia, the influence of the conservative wing is weakened.  A 4-4 decision will result if Kennedy joins the remaining conservatives in any vote opposite the perceived liberal justices.

When the Court is split 4-4, the lower court’s decision stands, and no national precedent is set.  Moreover, any circuit split the Court might have wished to resolve will remain unchanged.  Rather than render a 4-4 decision, the Court could order the case to be reheard next term—when

Sixth Circuit Reversed in Union Benefits Health Case: Supreme Court Rules Against Retired Workers

By Amanda Warford Edge

On Monday, in M&G Polymers USA, LLC v. Tackett, No. 13-1010, the U.S. Supreme Court ruled that ambiguous provisions in union contracts should not be automatically interpreted in favor of a company’s retired workers. The case concerned a union contract from the 1990s that provided free health care benefits to the retirees of a chemical plant in Apple Grove, West Virginia who received pensions. In 2000, M&G bought the plant, and in 2006, it sought to make its retirees contribute to the health care costs. The retirees sued, alleging that they had been promised free benefits for life. The contract, of course, did not directly state whether the parties intended lifetime investiture.

The district court found for M&G—but according to the Sixth Circuit, the retirees’ benefits had, in fact, vested for life. The Sixth Circuit relied on a long line of precedent, dating back to 1983, in support of this holding. Essentially, this precedent presumed the existence of lifetime benefits, even when the contracts at issue did not specify them. In Tackett, the Sixth Circuit expanded upon this presumption, holding that