The Fate of the DOL’s Persuader Rule Hangs in the Balance | DCR Workforce Blog

The Fate of the DOL’s Persuader Rule Hangs in the Balance

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.

Need for the DOL Persuader Rule

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:

  • Planning, directing or coordinating supervisors/managers with an object to persuade workers against such efforts
  • Providing materials to employers to disseminate to their workers, to persuade, as opposed to ensuring legal compliance
  • Conducting seminars or union avoidance training, through assisting attendees in developing specific persuasive anti-union tactics and strategies for use
  • Developing or implementing personnel policies or actions for use by the employer to persuade workers

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.

More clarity for better voter decisions

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?

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.