Thinking about having an employment relations consultant or attorney meet with your managers and supervisors for a union avoidance session? If so, you may want to have it scheduled to take place prior to July 1, 2016. According to a new rule issued by the Department of Labor (DOL), any union avoidance seminars conducted for supervisors or other employer representatives after July 1, 2016 must be reported to the DOL on government-issued forms.
The new rule, known as the “Persuader Rule,” pertains to the employer and labor relations consultant reporting requirements of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA requires employers and legal consultants to report any arrangement to persuade employees directly or indirectly regarding the right to organize or collectively bargain. For several decades, the DOL has exempted the legal consultant’s “advice” from this reporting requirement, meaning that employers were only required to disclose the hiring of outside firms for union elections and union avoidance efforts when the consultants, including lawyers, have direct contact with employees. Under this long-standing interpretation of the LMRDA, the outside consultant could meet with supervisors, help the employer develop a strategy to win the union election and even draft speeches; but none of these activities had to be reported to the federal government as long as the consultant abstained from having direct contact with the employees who would be voting in the union election or who were in a bargaining unit represented by a union.
In 2011, the Obama Administration’s DOL announced its intention to overhaul this interpretation and make all direct and indirect activities covered by the LMRDA subject to the Act’s reporting requirements. The announcement was met by strong opposition from employer groups and by the American Bar Association (ABA). The ABA in particular objected that expanding the reporting requirements would interfere with the attorney-client relationship and adversely impact an attorney’s ethical duty of confidentiality with respect to his or her client. However, the DOL was unpersuaded (pun intended) by these criticisms. On March 23, 2016, the Obama administration’s DOL issued its final rule which implements its interpretation of what the LMRDA requires.
According to the DOL, under the new rule:
For employer-consultant agreements and arrangements entered into on or after July 1, 2016, the parties to the agreement must report if a consultant undertakes, or agrees to undertake, “persuader activities.” These are defined as any actions, conduct, or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights. Under the typical reportable agreement or arrangement, a consultant agrees to manage a campaign or program to avoid or counter a union organizing or collective bargaining effort, either jointly with the employer or separately The rule also requires consultants to file reports when they hold union avoidance seminars for employers.
Consultant activities that trigger reporting of an agreement or arrangement with an employer include direct contact with employees with an object to persuade them, as well as the following categories of indirectly consultant activity undertaken with an object to persuade employees:
- Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees
- Providing material or communications for dissemination to employees
- Conducting a union avoidance seminar for supervisors or other employer representatives
- Developing or implementing personnel policies, practices, or actions for the employers
Certain activities have been identified by the DOL as exempt “advice” activities that do not have to be reported. Specific examples of exempted activities include:
- Guidance on employer personnel policies and best practices
- Seminars in which the consultant does not develop or assist the attending employers in developing anti-union tactics or strategies
- “Vulnerability Assessments,” including the use of surveys in which a consultant evaluates an employer’s proneness to union-related activity and offers possible courses of action
- Sales of “off-the-shelf” materials
Labor Relations Consultants (including attorneys) must file two forms for any activities subject to the reporting requirements. The Form LM-20 is due 30 days after entering into the persuader or information-supplying arrangement. The Form LM-21 is due 90 days after the consultant’s fiscal year. The Form LM-10 is the form that must be completed by the employer. It must be filed with the DOL within 90 days after completion of the employer’s fiscal year. These forms and their instructions are available at the above link.
Expect to hear more about the DOL’s new interpretation of the Persuader Rule between now and July 1st. Employer groups are sure to challenge its implementation and seek an injunction. However, as things stand right now, yet another arrow in the President’s quiver of pro-union initiatives has been launched and is about to strike (pun intended).