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All in a Day's Work® - Insights on Labor & Employment Law

Final "Persuader" Rule to be published tomorrow

The so-called “Persuader” Rule (Rule), and revised forms that facilitate it, will finally be published on March 24, 2016. The Rule is designed to give employees more information about the source of information they receive concerning union representation when they are assessing the merits of unionizing their workforce. The Office of Labor-Management Standards of the U.S. Department of Labor (DOL) originally issued a Notice of Proposed Rulemaking (NPRM) on the Persuader Rule on June 21, 2011. DOL is also revising two forms as part of this effort. The two forms are Form LM-20, Agreement and Activities Report, and Form LM-10, Employer Report.

In the NPRM, DOL proposed to revise its interpretation of the advice exemption in section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). DOL claims that its goal is to better effectuate the requirement that employers and their labor relations consultants report activities undertaken with an object, directly or indirectly, to persuade employees about how to exercise their rights to union representation and collective bargaining. Under the prior interpretation, reporting was triggered only when a consultant communicated directly with employees. According to DOL, this interpretation left a broad category of persuader activities unreported, thereby denying employees important information that would enable them to consider the source of the information about union representation in a campaign setting. DOL believes the new Rule and new forms eliminate this so-called gap in reporting.

DOL also claims the new Rule provides increased transparency to workers without imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its position on unions or collective bargaining. According to DOL, the Final Rule maintains the section 203(c) advice exemption as well as the traditional privileges and disclosure requirements associated with the attorney-client relationship.

DOL states that the forms and instructions have been revised to make them more user-friendly and, of course, to require more detailed reporting on employer and consultant agreements. Additionally, with this Rule, DOL requires that Forms LM-10 and LM-20 be filed electronically.

The Final Rule will be effective 30 days after publication and will apply to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.

A pre-publication copy of the 446 page Final Rule can be found here.  The text of the Final Rule is found beginning on page 415 of the PDF, followed by the revised forms. For a summary of the Final Rule following its actual publication, please stay tuned . . .

March 23, 2016

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