Breaking: DOL Publishes Persuader Rule
The US Department of Labor today published its long-awaited (and years in the works) final rule amending the reporting requirements for consultants and employers engaging in persuader activity. Under the Labor Management Reporting and Disclosure Act (LMRDA), employers and consultants are required to file certain reports with the government if the employer engages a consultant “to persuade employees about how to exercise their rights to union representation and collective bargaining.” Those reporting requirements have now been expanded, with potential impacts on employers, consultants, and even their legal counsel.
For decades, the reporting rule had been interpreted to require reporting only for direct persuader activity – that is, direct (face-to-face) contact with employees with an object to persuade them concerning their rights to organize and bargain collectively. The revised reporting rule applies to both direct and indirect persuasive activities, expanding the scope of the rule substantially. For example, providing persuasive material for dissemination to employees, planning persuasive individual or group employee meetings, and coordinating the timing and sequencing of union avoidance activities are all now reportable activities, according to the final rule.
However, not all activities relating to the exercise of employee rights to organize or bargain will be reportable under the final rule. Representing employers before the National Labor Relations Board, engaging in collective bargaining on an employer's behalf, and providing advice on the legality of persuasive materials prepared by the employer (as opposed to enhancing the persuasive effect of such materials), among other things, remain outside of the reporting requirement.
The final rule, which will be published in the Federal Register tomorrow, will be effective 30 days after publication, and “will be applicable to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.” We expect that the rule will be challenged in federal court in the very near future, and thus the content and effective date of the final rule stand subject to further change.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.