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On March 24, 2016, the U.S. Department of Labor (DOL) issued its final rule regarding the advice exemption to the “persuader rule” in the Labor-Management Reporting and Disclosure Act (LMRDA). The new rule changes the test that has been in place for more than 50 years and significantly expands the types of activities and information that must be disclosed under the LMRDA. Historically, employers were only required report to the DOL after engaging third parties (e.g., consultants or attorneys) during a union organizing campaign if the third parties directly communicated with employees. Agreements or payments to entities or individuals providing advice to employers on how to communicate with employees did not need to be reported. The new rule, however, requires employers to report the use of consultants or attorneys even if there is no direct contact with employees. That is, the new persuader rule requires employers to report not only when the consultants or attorneys the employer hires directly persuade workers, but also when the work has an “object” to persuade, even if there is no direct contact with employees.
Industry associations and law firms have filed lawsuits in US federal courts challenging the legality of rule, centering on the argument that the new rule infringes on the confidentiality of the attorney-client communications between employers and their legal counsel. The new rule is also being attacked in Congress, but stands effective at this time. The DOL has implemented a special enforcement policy which somewhat circumvents reporting on activities ostensibly covered by the new rule; however, this special enforcement policy is not permanent and is subject to revocation.
If your company is facing union organizing activities, consult an attorney at an Ally Law member firm to discuss what actions your company is contemplating and to assure you comply with current law in a manner that does not compromise your goals regarding the organizing activity. Ally Law member firms have lawyers with deep experience in labor and employment law and will carefully guide you through the labyrinth of applicable laws and regulations to meet your desired result. For more information about our services in this area, contact us at yourally@ally-law.com.
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By Nelson Cary and Cory Catignani of Vorys Sater Seymour and Pease, LLP.
