DOL’s new ‘persuader’ rule goes into effect July 1

by Steven R. Semler

The U.S. Department of Labor’s (DOL) new “persuader” rule is set to take effect on July 1. The rule will require employers and their attorneys and consultants to file with the DOL for public disclosure all agreements and payments to attorneys and consultants for providing advice, counter-organizational campaign training, and assistance on maintaining nonunion status.

Under the old rule, attorney and consultant assistance on maintaining nonunion status was exempt from reporting under the “legal advice” exception of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA).

Activity to be reported

Under the new rule, the attorney, consultant, and employer each must report any attorney or consultant activity that has the object or purpose of dissuading employees from unionizing, including:

• Drafting union campaign literature, speeches, audiovisual presentations, or website content;
• Drafting counter-organizational talks or talking points for supervisors who meet with employees in groups or individually;
• Meeting with supervisors or management to oversee or develop counter-organizational strategy;
• Training supervisors in counter-organizational conduct;
• Coordinating or planning counter-organizational campaigns;
• Establishing employer policies to inhibit union activity; and
• Planning personnel actions or discipline to affect union activity.

‘Legal advice’ exception limited

The final rule reverses past precedent that enlisting attorneys or consultants for advice on how to lawfully campaign against unionization is not subject to reporting and disclosure requirements. Under the new rule, oral or written agreements to provide those services and fees paid for the services are reportable and subject to public disclosure.

The new rule limits the exception for nonreportable legal advice, which now includes things like:

• Explaining the law, but not for the purpose of persuading how to maintain nonunion status;
• Reviewing employer-prepared counter-organizational literature for lawfulness and grammar, but not to revise it for the purpose of achieving or enhancing persuasion against unionization;
• Advising the employer about legal decisions or courses of conduct; and
• Representing the employer in legal proceedings or collective bargaining negotiations.

Employers’ activities in buying “off the shelf” counter-organizational literature not customized for their workplace or attending trade association seminars on how to maintain nonunion status are exempt from the rule.

For more information on the new “persuader” rule, see the April issue of Federal Employment Law Insider.

Steven R. Semler is an attorney with Fortney & Scott, LLC. He can be reached at ssemler@fortneyscott.com.