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Persuader rule moves forward

December 9, 2015

Modifications to the “persuader rule” have been on and off the agenda of the Department of Labor (DOL) over the past few years. The proposed change to the rule expands the type of things that must be reported under the Labor-Management Reporting and Disclosure Act (LMRDA).

The rule is back on the docket. On December 7, the DOL submitted the final rule to the Office of Management and Budget (OMB), which is the last step before the rule can be published in the Federal Register and made effective.

The proposed rule expands the scope of the employer’s reporting obligations under the LMRDA. It narrows the “advice exemption” in Section 203 (c) of the LMRDA. This advice exemption traditionally did not require reporting where 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/should not join a union. Employers often hire attorneys or consultants to advise them in their efforts to defend against a union organizing drive. Where the attorney or consultant simply provided advice and counsel, and did not deal directly with employees, the advice exemption did not require reporting.

Under the broader proposed rule, “persuader activity” includes communications that, “in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively.” Consequently, under the new rule, reporting would likely be required in situations previously covered under the exemption.  For example, reporting would be required where an agreement or arrangement, in whole or part, calls for a consultant to engage in persuader activities, regardless of whether or not advice is also given. Thus, “persuasion” would cover any activity, like speech writing or campaign coordination, that may influence an employee’s decision concerning an election or other protected concerted activity.

Changes to the persuader rule have been a priority for organized labor for a long time. The end game is now on given that we are entering the last year of the Obama era. Our team will continue to monitor the proposed changes to the rule.

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