DOL Publishes Final Persuader Rule

March 30, 2016

pic-owner-workers-exportOn March 23, the U.S. Department of Labor (DOL) issued the long-awaited final persuader rule that will require public disclosure of any consultants that employers hire to assist in union organizing campaigns. The persuader rule, first proposed in 2011, amends the Federal Labor Management Reporting and Disclosure Act to require detailed reports from employers and their advisers, including the types of consulting or legal services rendered and any fees paid. These reports must be filed electronically and, once filed, become publicly available records.

Almost five years after it published the proposed rule, the DOL is adopting “the proposed rule, with modifications, providing increased transparency to workers without imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its positions on matters relating to union representation or collective bargaining.”

The final persuader rule does not require employers or consultants to disclose the content of the advice offered. For example, agreements under which a consultant exclusively provides legal services are not to be reported. Representation of the employer before a court or similar tribunal or during collective bargaining negotiations also does not trigger reporting.

However, it will require them to report when they “plan, direct, or coordinate managers to persuade workers; provide persuader materials to employers to disseminate to workers; conduct union avoidance seminars; and develop or implement personnel policies or actions to persuade workers” on union organizing, according to the DOL.

Examples of activities that the rule will require reporting include training supervisors to conduct meetings about union organizing efforts; coordinating the anti-union activities of supervisors; and drafting or providing speeches to oppose union organizing. Identifying employees for disciplinary action, reward or other targeting will also require disclosure.

Numerous business organizations plan to file lawsuits regarding the legality of this regulation, seeking court orders to block the implementation of the new regulation. If a court grant a temporary restraining order in any of these suits, the Labor Department’s new requirements may be kept from going into effect during the pendency of the litigation. The principal argument likely to be made in these suits is that it could discourage some companies from consulting lawyers at all, potentially leading them to commit inadvertent labor violations during union campaigns.

This rule takes effect on April 25. It will be applicable to arrangements, agreements, and payments made on or after July 1. The DOL has compiled more information about the rule on its website.

NSBA has long opposed the persuader rule, filing comments in 2013, citing that this rule is particularly detrimental to small businesses which rarely have attorneys or labor specialists on staff, forcing the owners to seek outside help to ensure their interests are represented in a union campaign. Eliminating the so-called “advice exemption” is a direct affront to small businesses ability to fully educate their workforce and have all the advantages a large corporation has in a union campaign.