On April 13, 2016, the Office of Labor-Management Standards (OLMS) at the U.S. Department of Labor (DOL) issued aForm LM-21 Special Enforcement Policy announcement. Effective immediately, the policy is suspending the enforcement of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) requirement for the filing of two parts of the annual Form LM-21 Receipts and Disbursements Report for the foreseeable future.
On March 23, 2016, the DOL issued final regulations significantly revising the advice exemption to "persuader activity" reporting requirements for the filing of Form LM-20 Agreements and Activities Report and Form LM-10 Employer Report. The final regulations greatly expand the scope of reportable advice and services and greatly restrict the advice exemption from reporting. The Department’s position is that the result of the new regulations would be the required filing of reports and disclosure of information by a much broader group of employers and outside counsel on a much broader range of labor relations advice and services where an object is to persuade employees, directly or indirectly, regarding unionization.
When labor relations consultants, including lawyers, file a Form LM-20 report disclosing persuader activity advice and services, it triggers the requirement for consultants and lawyers to file a Form LM-21 report. This report discloses receipts and disbursement records for "all labor relations advice and services" that consultants and lawyers have provided over the course of the previous year and must be filed within 90 days of the end of the filer's fiscal year.
However, the current LMRDA Form LM-21 regulations do not define the term "labor relations advice and services." OLMS has announced separate rulemaking scheduled for September 2016 to define the scope of that term and to make other changes to the Form LM-21 reporting requirements.
Employers have argued—both in written comments during the LM-10 and LM-20 rule making and now in federal district court litigation seeking to enjoin the new rules from taking effect—that until the term "labor relations advice and services" is defined for purposes of Form LM-21, enforcement of the new persuader activity reporting requirements will impose irreparable harm for employers and labor relations consultants, including lawyers. The new OLMS Form LM-21 Special Enforcement Policy announced this week apparently concedes the validity of this argument.
What Does the Special Enforcement Policy Mean?
Until further notice from OLMS, filers of Form LM-21 reports will not be required to complete Part B Statement of Receipts and Part C Statement of Disbursements.
Part B of Form LM-21 ordinarily requires the filer to “[r]eport all receipts from employers in connection with labor relations advice or services regardless of the purposes of the advice or services” and whether the advice or services are persuader activities.
Part C of Form LM-21 ordinarily requires the filer to “[r]eport all disbursements made by the reporting organization in connection with labor relations advice or services rendered to the employers listed in Part B.”
Now and for the foreseeable future so long as the OLMS Special Enforcement Policy remains in effect, a Form LM-21 Report that omits Parts B and C will be deemed to be complete.
Also, filers are not required to maintain records solely related to parts B and C of Form LM-21 as otherwise would be required by LMRDA's Section 206, which requires individuals to maintain applicable records for a period of at least five years after such reports have been filed.
The newly-announced Form LM-21 Special Enforcement Policy, while welcome, does not address the remaining objections to the expanded scope of reportable "persuader activity" and the greatly restricted scope of the advice exemption set forth in the final regulations, which are scheduled to take effect on July 1, 2016.