New Rule Requiring Disclosure of Attorneys/Consultants Hired to Aid in Responding to Union Activity
Yesterday, the Department of Labor's controversial “Persuader Rule” was published in the Federal Register and will require employers, beginning July 1, 2016, to make disclosures to the DOL regarding consultants and attorneys they hire to assist them in persuading employees regarding representational (union organizing) and collective bargaining matters. Previously, such disclosures were required only if the consultant had direct contact with the employees, but not if the consultant merely gave advice and assistance to the employer on how to communicate with employees. The new rule is intended to close this purported “loophole” and to now require disclosures from both the employer and the consultant even where the consultant or attorney has no direct contact with employees and the employer is free to accept or reject the consultant's recommendations.
Under the new rule, employers and their consultants must report not only when the consultant is hired to directly persuade employees (through direct communications) but also when the consultant does not directly communicate with employees but is nonetheless engaged to do work that has an “object” to persuade. This type of work includes (1) planning, directing, or coordinating managers to persuade workers (e.g. planning group or individual employee meetings or training supervisors to conduct such meetings); (2) providing materials to employers to disseminate to workers (e.g. drafting, revising, or providing written or oral material, speeches, or similar multimedia content);(3) conducting seminars for supervisors or other employer representatives; and/or (4) developing or implementing personnel policies, practices, or actions to persuade workers (e.g. coordinating the timing and sequence of union avoidance tactics/strategies).
Reportable conduct does NOT include a consultant or lawyer's work in merely reviewing and revising employer-created material where the object ot the review/revision simply is to ensure legality as opposed to optimizing the persuasiveness of the material.