DOL’s final ‘persuader’ rule is another win for unions, loss for employers
On the heels of National Labor Relations Board’s “ambush election” rules taking effect, unions have scored another win on the organized labor front.
This time, the win comes directly from the DOL, which hasn’t been shy about showing its support for organized labor lately.
The DOL just published a final rule amending the Labor-Management Reporting and Disclosure Act.
The rule has been dubbed the “persuader rule,” and it requires that employers, lawyers and labor consultants disclose to the DOL — and therefore to a union — any arrangements made that may result in persuading employees when it comes to organizing or bargaining collectively.
Sound pretty broad? That’s because it’s meant to be, and employment law attorneys are saying this is a big win for unions.
The rule essentially reinterprets the act’s “advice exemption,” which had always said arrangements between employers and their consultants or attorneys did not have to be disclosed as long as the employers’ consultants and/or lawyers didn’t communicate directly with employees.
Now, any payment or arrangement made on or after July 1, 2016 with an attorney or third-party to obtain guidance on employees’ union organizing efforts must be disclosed to the DOL and made public.
Opponents of the rule are saying this is a huge infringement on the attorney-client privilege, and unfairly — and perhaps unjustly — helps unions gain a foothold in non-unionized operations.
In fact, the U.S. Chamber of Commerce issued a statement saying:
“The persuader rule overturns the long-standing interpretation of the Labor Management Reporting and Disclosure Act’s ‘advice’ exemption in order to require new and complicated reporting for attorneys, consultants, and other professionals who advise employers about certain labor matters. By expanding reporting requirements and making it more difficult to comply, the goal of the persuader rule is to discourage attorneys from offering labor relations services. Ultimately, this will limit employer access to counsel and stifle employer speech, thereby providing more opportunities for unions to catch unsuspecting employers mistakenly running afoul of complicated labor laws.”
Employment law attorneys say employers can bet on the rule being challenged in federal court, where opponents will try to block its implementation.
The attorneys at FordHarrison have said that it’s likely any lawsuit seeking to block the rule’s implementation will use the argument that the rule is an “improper imposition into attorney-client communications.”
If a court grants a temporary restraining order, the rule could be kept from going into effect for as long as it take the legal process to run its course.
Stay tuned. We’ll keep you posted.
