On March 23, 2016, the U.S. Department of Labor (DOL) issued a new rule affecting employers’ campaigns to fight unionization of their workers. The new rule requires employers and their consultants to file reports not only for direct persuader activities – consultants talking to employees – but now also for the first time “indirect” persuader activities – consultants scripting what managers and supervisors say to employees.
DOL issued this new rule, which was first proposed in June 2011, claiming “[w]orkers often don’t know that their employer hired a consultant to manage its message in union organizing campaigns, including by scripting speeches by managers, talking points, letters, and other documents.”
The new rule takes effect on April 25, 2016, and applies to arrangements, agreements, and payments made on or after July 1, 2016. The new “persuader” rule requires forms to be filed electronically by employers and labor relations consultants to report persuader agreements and arrangements. Reports must be filed if the labor relations consultant undertakes activities that fall within the categories described below.
- Direct Persuasion. Consultants must report if they engaged in any conversation or other direct communication with any employee, where the consultant has an object to persuade the employee about how he or she should exercise representation or collective bargaining rights.
- Indirect Persuasion. Reporting is required if the consultant – with an object to persuade – plans, directs, or coordinates activities undertaken by supervisors or other employer representatives. Reporting is required if the consultant provides – with an object to persuade – material or communications to the employee, in oral, electronic, or written form, for dissemination to employees. Seminar agreements must be reported if the consultant develops or assists the attending employers in developing anti?union tactics and strategies for use by the employer, the employer’s supervisors or other representatives. Reporting is required if the consultant develops or implements personnel policies or actions for the employer with an object to persuade employees.
Litigation is expected to block this new rule from taking effect because of claims that it will limit employer access to legal counsel to assist them in lawfully exercising their federally protected free speech rights to discuss the pros and cons of unionization with their employees. This new rule when proposed in 2011 was opposed by the American Bar Association, the Association of Corporate Counsel, and State Attorneys General. These groups argued it would force attorneys to report in public records their confidential attorney?client and financial relationships. Stay tuned for the rest of the story.
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