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Expanded Reporting Obligations For Private Employers Under DOL's “Persuader” Final Rule

March 28, 2016

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On March 23, 2016, the Department of Labor (DOL) published its long-awaited “persuader” regulation, which requires private employers and consultants to report any arrangement to persuade employees, either directly or indirectly, regarding the right to organize or bargain collectively. 

Although the DOL characterizes the new rule as “realign[ing]” its regulations with the text of the Labor-Management Reporting and Disclosure Act (LMRDA), the new rule expands the scope of an employer’s reporting obligations under the LMRDA by substantially narrowing the "advice exemption.” For many years, this advice exemption excluded from the reporting requirements circumstances in which a person or entity provided advice to an employer regardless of whether that advice included a “persuasive” component (i.e., recommendations that would influence whether an employee should or should not join a union).  Thus, employers were required to disclose hiring an outside firm only if the consultants made direct contact with employees.

The new rule, however, requires that 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 activities are defined as any actions, conduct, or communications that are undertaken to affect -- explicitly or implicitly, directly or indirectly -- an employee’s decisions regarding his or her representation or collective bargaining rights.  The rule also requires consultants to file reports when they hold union avoidance seminars for employers.

Under the rule, consultant activities that trigger reporting of an agreement or arrangement with an employer include direct contact with employees with an objective to persuade them, as well as the following categories of indirect consultant activity undertaken with an objective to persuade employees:

  1. Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives including meetings and interactions with employees; 
  2. Providing material or communications for dissemination to employees;
  3. Conducting a union avoidance seminar for supervisors or other employer representatives; and 
  4. Developing or implementing personnel policies, practices or actions for the employer.

The new regulation limits exempt “advice” activities to those activities that meet the plain meaning of the term: an oral or written recommendation regarding a decision or course of conduct.  Agreements are not reportable if the consultant merely advises or represents the employer. 

Employers must report persuader activities on revised Form LM-10 (Employer Report) within 90 days after the completion of the employer's fiscal year. (click here for a copy of revised Form LM-10)

Labor relations consultants will report persuader activities on revised Form LM-20 (Agreement and Activities Report) and also may need to file a Form LM-21 (Receipts and Disbursements Report), which the DOL may revise in September 2016.

This publication was written by Emily Leahy and the Labor Section Client Services Team.

 

For more information, please contact:

Emily Leahy

415-995-5155 Direct Phone
415-995-3557 Fax

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Lisa Pooley

415-995-5051 Direct Phone
415-995-3405 Fax

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