For the past several years, we have been tracking the U.S. Department of Labor’s (DOL) consideration of new regulations that would significantly narrow the DOL’s interpretation of the Labor-Management Reporting and Disclosure Act (LMRDA) that has been in force since 1962. Dubbed the “persuader rules,” the regulations address Section 203 of the LMRDA, which, among other things, requires employers to file reports with the DOL when they hire consultants or contractors (including attorneys) to persuade employees on the issue of unions.
Over Memorial Day weekend through a posting with the Office of Information and Regulatory Affairs (OIRA), the administration announced in its Spring 2015 Unified Agenda that it now does not plan to release a final rule until at least December 2015. Unlike last spring’s delay, the DOL did not make any public statements about the rule. In all, the DOL’s latest wide-ranging Agenda lists 70 separate regulatory items on topics from OSHA to OFCCP, including 36 proposed rules, 21 rules at the final stage, and another 13 at the pre-rule stage. In addition, the DOL disclosed 16 items on its long-term action list. The Agenda, which is not binding on the DOL, includes two Fair Labor Standards Act (FLSA)-related items as well: the “white collar” overtime exemption rewrite and a new request for information (RFI) regarding employee smartphone usage. See our Wage & Hour Insights blog for coverage of these important Agenda items.
We covered the oft-delayed persuader rules in greater detail in January 2013. The new standards would drastically increase the reporting requirements for employers and attorneys/consultants/contractors and could substantially interfere with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union activity, and have a chilling effect on employer free speech during such campaigns. First proposed back in June 2011, the Obama administration originally slipped a November 2013 release date for the final rule onto its Unified Agenda of upcoming regulatory and deregulatory actions. The Obama administration quietly pushed that deadline to March 2014, then to late 2014 before delaying it again.
The DOL has still not submitted its final language of the persuader rules to OIRA, which would then conduct a final review, approve the text of the regulation, and publish it in the Federal Register. The period for the Office to review a draft regulation is limited by an Executive Order to 90 days, with the possibility of a single, 30-day extension. While there is no minimum period for review, the average review time in past years has been approximately two months. Therefore, the DOL would need to submit a final rule by September or October to have it in place by December 2015.