Persuader Rule Update

By George J. Miller

By now, I assume most employers and others who keep up with developments in labor and employment law are familiar with the U.S. Department of Labor’s (DOL) controversial “persuader rule” that was set to take effect on July 1 of this year.  For those who are not familiar with it, here is a summary of what all the fuss is about, followed by some recent court developments.

In 1959, Congress amended the National Labor Relations Act (NLRA) by passing the Labor Management Reporting and Disclosure Act (LMRDA).  The main purpose of the LMRDA was to rid organized labor of corruption and also make it more democratic.  However, the LMRDA also requires labor consultants (including lawyers) to file reports with the DOL identifying their employer clients and the details of the terms of their engagement, including fees paid for their services, if an object of the engagement, either directly or indirectly, is to persuade employees whether or how to exercise or not to exercise their rights to organize or bargain collectively under the NLRA.  The law also requires employers who engage consultants for such purposes to file a similar report.  These filings are a public record.  Willful violations of the LMRDA’s reporting requirements are criminal and are punishable by a fine of up to $10,000 or a year in jail, or both.

However, the LMRDA contains an exception from the reporting requirement for consultants’ “advice” to employers in such matters.  Shortly after the LMRDA was enacted, the DOL issued guidance stating that if a labor consultant (including an attorney) did not communicate directly with employees regarding their

U.S. Department of Labor Proposes New Rule Concerning Reporting Of Persuader Activity By Labor Relations Consultants and Attorneys

By Edwin S. Hopson

On June 20, 2011, the U.S. Department of Labor issued a press release in which it announced a proposed rule to revise the interpretation of “advice” as it pertains to the employer and labor relations consultant persuader reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). The proposal defines the term “advice” as “an oral or written recommendation regarding a decision or course of conduct.”

 Section 203 of the LMRDA requires the disclosure in writing to the Department of Labor of agreements or arrangements between an employer and labor relations consultant in the event that a consultant undertakes or agrees to undertake for that employer activities that seek to directly or indirectly persuade workers during a union organizing campaign or collective bargaining negotiations. Neither the employer nor the consultant is required to file a report with the Department if the services of the consultant consist of merely giving or agreeing to give advice to the employer.  However, if the consultant’s activities go beyond “advice”, that is for instance, if the persuader activities consisted of actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers during the organizing campaign, regardless of whether or not the consultant has direct contact with workers, then the arrangement would be reportable.  An agreement also would be reportable where the consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.

Secretary of Labor Announces Her New “Vision” For American Workers

By Edwin S. Hopson

On December 7, 2009, U.S. Secretary of Labor Hilda L. Solis laid out her “vision” in the Fall 2009 Regulatory Plan for the Labor Department’s mission of ensuring “there are good jobs for everyone.” [Emphasis in the original].  Secretary Solis described a “series of 12 specific strategic outcomes” which she hopes will result in achieving her vision.  According to the Labor Department’s website, they are: