The Department of Labor (DOL) on March 23 issued its final "Persuader Rule," requiring employers and their hired labor-relations consultants to disclose far more of their communications to employees. The employer community has expressed concern that the rule will limit employers' access to expert advice as to how to communicate with employees regarding the pros and cons of unionization.
Specifically, the final rule limits the so-called "advice exemption" in the DOL's Persuader Rule. The Rule requires employers and the experts they hire to disclose any arrangements where an expert is hired to communicate directly with employees about their decision to unionize. If the experts do not communicate directly with employees, but are simply providing "advice" to the employer about how to effectively/legally communicate with employees, this has been exempt from disclosure requirements.
DOL's new final rule narrows the scope of this "advice" exemption so that far more interactions between employers and hired experts providing advice on employee or labor relations will be subject to disclosure requirements. Because of the excessive costs associated with such disclosure, many in the employer and legal community fear that employers will no longer have access to routine legal counsel or expert advice on employee relations, human resources or employee benefits. According to the American Bar Association, the persuader rule will likely discourage many attorneys from handling labor issues, leaving tens of thousands of small businesses without access to legal advice.
The organized labor community contends that the rule gives organizers a valuable retort to employers who paint unions as intrusive third parties.
The Coalition for a Democratic Workplace (CDW), which is composed of over 600 organizations representing millions of businesses and includes NATSO, the National Association of Manufacturers, the National Retail Federation and the Associated Builders and Contractors, is considering a legal challenge pending a full review of the final rule.
More than 70 Republican members of Congress also already have asked the House Appropriations Committee to block the rule in an upcoming Labor, Health and Human Services bill.
CDW said it is disappointed that DOL’s final rule is unfair to employers and employees and ignores thousands of comments submitted by small business and other stakeholders in response to the proposed rule issued in 2011.
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