The Department of Labor’s (DOL) greatly expanded Persuader Rule, institutes reporting requirements for individuals and organizations (including lawyers and law firms) working with employers to “persuade” employees regarding their right to organize and collectively bargain under the National Labor Relations Act. While consultants and employers have always been required to report “direct” persuasion activities to the DOL, the revised Rule covered even “indirect” persuader activity, including consultation with legal counsel, in the category of activities that must be reported to the DOL.
The Rule was supposed to go into implementation as of July 1, requiring employers to report any agreement or arrangement with a lawyer or third-party consultant to “persuade” employees — directly or indirectly — about their union organization and collective bargaining rights. It’s this control over “indirect” persuader activity that’s a violation of the privacy between an attorney and their client – that led to the Act’s ending up on the back burner for the time being.
Now a nationwide injunction prohibiting the Rule’s implementation was issued by two different courts (Northern District of Texas and Minnesota) as the Rule runs contrary to another law. The Labor Management Reporting and Disclosure Act specifies that persons providing advice to an employer are not required to file reports with the DOL. Since the DOL has informally agreed not to apply the Rule to agreements that were entered into on or before July 1, most employers decided to take advantage of this loophole and hurriedly entered into written agreements revising earlier mandates to include an indefinite arrangement to complete, un-conflicted legal advice and representation relating to unionization campaigns.
The DOL’s Office of Labor-Management Standards changed the original Persuader Rule that required reporting of direct contact with employees and was meant to prevent abuse and corruption. The revised Persuader Rule was supposed to help employees understand the source of the views, materials and policies that are being used to influence their decisions about their union organization and collective bargaining rights.
Situations that call for reporting under the Rule involve direct or indirect efforts to control union organization and collective bargaining by:
Since all these steps are usually taken by almost all employers as soon as they learn of their employees taking concrete steps to establish their collective bargaining rights, there’s a serious resistance to the Rule from organizations; three suits were filed against the DOL to prevent the Rule from being implemented. Two were settled against the DOL, while the decision is still pending in Arkansas.
With the Texas court’s decision, the DOL needs to continue to exempt an attorney from reporting to the DOL on any advice given to clients with regard to union avoidance training and employee relations, as long as the attorney does not communicate directly with non-supervisory employees. Further, an attorney may lawfully, without reporting, prepare documents and speeches for an employer’s use during union organizing, train managers and supervisors through seminars and develop personnel policies and practices for an employer to implement.
The DOL could appeal this decision and push to implement its new Rule, so employers need not step down on their efforts to preserve their rights through revised agreements. Right now, the fate of the new Persuader Rule is hanging in the balance.
The updated Rule doesn’t preclude employers from paying for services; nor does it limit what employers or consultants can say. However, this Rule provides more clarity for workers by instilling a commonsense reporting requirement for when companies pay for persuader services during union organizing efforts. It just boils down to knowing who is saying what, from which perspective. And that will lead to better voter decisions.
Do you agree or disagree that the Rule will help clarify information for voters regarding the union organization and collective bargaining rights? How so?
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