The US department of Labor unveiled its union "persuader" rule. The rule will require employers and their advisors to report any arrangement (e.g., third-party consultants,
legal counsel, etc.) to persuade employees, directly or indirectly, concerning their right
to organize.
The rule takes effect July 1, 2016. The DOL argues the rule is needed because "workers often do not know when employers engage consultants behind the scenes to influence their decisions." The rule addresses "this lack of transparency ... resulting in better information for workers making decisions on whether or not to form a union or bargain collectively."
The new rule, requires reporting on "actions, conduct or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee's decisions regarding his or her representation or collective bargaining rights."
Employers and consultants will be required to provide detail reports with respect to the types of consulting or legal services provided and the amount of fees paid in connection with
advice on
organizing campaigns.
The 'persuader' rule has been met with sharp criticism from employers and business groups. They
argue that it will curtail an employers' First Amendment free speech rights and improperly encroaches
on the attorney-client relationship and confidentiality obligations.
Stay tuned. Given the rulings far reaching implications and the business community's response, it is likely the final rule will be challenged in court by business groups.
Excerpts from Mintz Levin Bog 3/29/16
