As we have been reporting, the U.S. Department of Labor (DOL) has been considering 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. 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 announced last Thanksgiving weekend through a posting with the Office of Information and Regulatory Affairs (OIRA) that it would publish of the final rule in March 2014. Yesterday, in an interview with Bloomberg, a DOL spokesman confirmed that the rules would be delayed again. The spokesman said that “the department intends to take the time to get [the rules] right rather than meet arbitrary deadlines.”
The DOL spokesman indicated that the agency’s next regulatory agenda filed with OIRA will contain a new publication date. OIRA 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 is unlikely to have a final rule in place before mid-summer 2014.
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.