Now that Thomas Perez has taken the helm at the Department of Labor (DOL), businesses are bracing themselves for an expected uptick in regulatory and enforcement activity. Because a divided Congress has created a legislative logjam, most expect the bulk of the Obama administration’s agenda to be carried out through the agencies. Anticipating that a reinvigorated DOL will immediately start pursuing its ambitious agenda, some lawmakers are taking steps to ensure that employer interests will be represented in this process.
Earlier this week, for example, Reps. John Kline (R-MN) and Phil Roe (R-TN) asked the new Labor Secretary for an official determination as to whether worker centers – typically non-profit organizations offering a variety of services to their members, including worker advocacy, lobbying, employment services, and legal advice – constitute labor organizations under the Labor-Management Reporting and Disclosure Act (LMRDA), and are therefore subject to the law’s many filing requirements.
As Kline and Roe explain in their letter to Perez, in addition to providing “information and training in workers’ rights, employment, labor and immigration law,” these worker centers “have also taken direct action to alter conditions of employment and organize employees.” The congressmen include the definition of “labor organization” under section 2(i) of the LMRDA, which is an organization:
engaged in an industry affecting commerce and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment.
Kline and Roe discussed an example of a worker center, the Korean Immigrant Worker Advocates (KIWA), which has participated in “industry-wide organizing” resulting in increased minimum wage payments in certain Los Angeles restaurants. The KIWA engaged in picketing and boycotting, as well as efforts to organize an independent workers union. In essence, these worker centers are able to operate in many respects as a union would, but without the accompanying reporting and legal obligations. The KIWA and similar worker centers, the lawmakers contend, arguably fall within the definition of “labor organization.” To this end, Kline and Roe are requesting that Perez make an official determination regarding worker center LMRDA reporting obligations.
The request for an official determination on this LMRDA issue is notable in light of the imminent final “persuader” rule that the DOL is expected to issue this fall. This rule would narrow the types of activities covered by the LMRDA’s “advice exemption”, thereby broadening the scope of an employer’s reportable activities. Critics of this proposal have claimed that it will threaten attorney-client confidentiality and facilitate union organizing. A determination that worker centers should also be subject to certain LMRDA reporting requirements can be seen as an effort to push back at the administration’s increasingly pro-labor policies.
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