Government, Human Resources, and Law

Employers subject to new union ‘persuader’ rule

April 6, 2016
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Keith Brodie
Brodie

A new rule from the U.S. Department of Labor that was finalized last week and goes into effect July 1 will require employers to disclose any outside advisers they hire, such as attorneys or consultants, to counter union organizing efforts.

Known as the “persuader” rule, the DOL has said it provides greater transparency to employees, who aren’t always aware of who is crafting employer messaging related to unionization.

“Workers should know who is behind an anti-union message. It’s a matter of basic fairness,” said U.S. Secretary of Labor Thomas Perez. “This new rule will allow workers to know whether the messages they’re hearing are coming directly from their employer or from a paid, third-party consultant.”

Employers and employer organizations oppose the new rule, saying it creates a blurred line between what constitutes persuasion and advice.

“A lot of line drawing will result between what is persuasion and what is legal advice,” said Keith Brodie, attorney with Barnes & Thornburg. “If it’s persuasion, you have to report and if it’s legal advice you don’t have to report, but there may be disagreements.”

He said many individuals in the legal community also are concerned the rule has the potential to intrude upon attorney/client privilege and the confidentiality of attorney/client communications.

Brodie said previously a consultant could write a speech or edit comments that would be made to employees about unionization and give it to a supervisor, and if the supervisor made the comments or the speech, it wasn’t reportable.

He said only if the consultant spoke directly with employees in an attempt to persuade them not to form a union would the employer and the third party be required to report.

Under the new rule, both of the above examples are now reportable.

Brodie expects there will be an attempt to stop the new rule from going into effect. “There is a high likelihood of legal challenges to the rule.”

The rule is one more example of changes under the Obama administration impacting employers’ anti-union efforts, Brodie said.

He specifically pointed to another recent change by the National Labor Relations Board shortening the time allotted for union elections following a union election petition, which, in turn, shortens the time available for employers to respond to employees with their own information.

“The implication for employers is it’s a much more risky environment on the labor relations front,” Brodie said.

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