As you may recall, in April, 2013, the House passed H.R.1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act,” by a 219-209 vote. See, “Noel Canning: Congress Enters the NLRB Fray.” Now the House once again has expressed its dissatisfaction with the Administration’s handling of labor issues, this time regarding the United States Department of Labor’s Office of Labor-Management Standards' (OLMS) proposal to change the so-called “advice” exception to the reporting requirements of the Labor-Management Reporting and Disclosure Act.
On May 29, 2013, Rep. John Kline (R-Minn), Chairman of the House Committee on Education and the Workforce, and Rep. Phil Roe (R-Tenn.), Chairman of the Subcommittee on Health, Employment, Labor and Pensions, wrote to Seth Harris, Acting Labor Secretary, that the proposed rulemaking “would impede employers’ ability to communicate lawfully with their employees about unionization.” The Representatives also cited the “regulatory burdens” and negative effects on the “confidential attorney-client relationship” the proposal would cause. As a result, the Representatives encourage[d] the department to withdraw … [its proposed] rulemaking.” Read the letter here.
Under Section 203 of the LMRDA, employers and labor consultants are required to report agreements or arrangements to persuade employees, directly or indirectly, with respect to the exercise of their rights to organize or bargain collectively. Since 1963, the Department of Labor has exempted employer and labor consultant reporting if the consultant has no direct contact with employees and the employer is free to accept or reject the consultant’s advice or materials.
In June, 2011, the Department of Labor issued a proposed rule to significantly narrow the definition of “advice” and expand reporting obligations for employers, attorneys and labor consultants. The Department of Labor received thousands of comments on the proposed rule and, according to the 2012 Unified Agenda of Federal Regulatory and Deregulatory Actions, final action on this rule was scheduled to occur in April, 2013. However, no final rule has been published through the date of this posting.
The two House Committee representatives through their May 29, 2013, letter to Acting Secretary Harris continue to “encourage the department to withdraw this rulemaking.” Kline and Roe further question the regulatory burden and cost of the proposed rulemaking and request “all documents and communications relating to the proposed and final rules’ burden analysis no later than June 12, 2013.”
The proposed changes to the “advice” exception would affect employers significantly. They would interfere with an employer’s ability to obtain legal advice during labor organizing drives without fear of incurring reporting obligations based on their communication with counsel. We will continue to keep you updated on any advancements or final action with the proposed rule.