The Department of Labor’s “persuader rule,” which is set to go into effect on Monday, April 25, will give unions a new tool to use against employers who try to push back against union organizing campaigns. The rule will eviscerate any confidentiality between a business and labor relations consultants the business might hire for advice on how to counter union organizing efforts.
The rule would mostly affect medium-sized businesses that are just large enough to be targeted for unionization and too small to have in-house counsel. It also would encourage some large law firms to get out of the business of labor relations advising.
Specifically, the rule expands reporting requirements under the Labor-Management Reporting and Disclosure Act (LMRDA) to encompass virtually all of a business’ interactions with labor consultants. As attorney Jonathan Sokolowski explains:
[T]he current LMRDA carves out a key exception to its reporting requirements for relationships which are restricted to the provision of “advice” to the employer. Significantly, the “advice” exemption has long been interpreted to mean that, in the absence of direct contact with employees, labor relations consultants and attorneys could provide employers with unreportable advice, including much of the advice regularly provided to employers throughout the union organizing and bargaining processes.
However, the OLMS’ new final rule – which largely adopts the rule it first proposed nearly 5 years ago, in June 2011, which met substantial resistance from business groups, the American Bar Association and state Attorneys General, among others – will significantly narrow the “advice” exemption by defining “advice” to mean “an oral or written recommendation regarding a decision or a course of conduct.” As a result, the rule will trigger LMRDA reporting of any persuader activity, irrespective of whether or not an employer’s labor relations consultants and attorneys have direct contact with employees.
Fortunately, Congress seems poised to do something about this. On April 18, Rep. Bradley Byrne (R-Ala.) introduced a resolution of disapproval (H.J. Res. 87), under the Congressional Review Act, to repeal the persuader rule. And on April 27, the House Education and the Workforce Committee will hold a hearing on the rule, where many of the problems with the rule can be aired.
Citizens are pushing back, too. Three lawsuits challenging the rule, filed by various businesses and trade groups, are now making their way through the courts.