On July 1, 2016, employers must begin reporting additional “persuader activities” to the U.S. Department of Labor. Such activities are those which have an objective to persuade workers regarding their rights to organize and bargain collectively under the National Labor Relations Act (NLRA).
Specifically, Section 203(b) of the Labor-Management Reporting and Disclosure Act (LMRDA) requires employers and consultants, such as attorneys, to report arrangements where a consultant performs persuader activities. Under the final rule, moreover, employers and consultants must report arrangements resulting in direct and indirect persuader activities:
The final rule provides that the LMRDA does exempt a consultant’s “advice” from reporting, which it describes as occurring when a consultant gives advice or an opinion on legal compliance, best practice, or whether something is legal. The final rule also explains that communications protected by the attorney-client privilege or an attorney’s ethical duty are exempt.
Further, the rule provides that unless there is a labor dispute, the LMRDA does not require reports of vulnerability assessments, attitude surveys or other methods to gather information from workers that are not designed to persuade. But, according to the rule, if the consultant gives advice and performs persuader activities, the entire arrangement must be reported.
The rule is controversial and there may be litigation over its implementation. Regardless, employers should evaluate the rule, along with the National Labor Relations Board’s “quickie election” rule that went into effect in April 2015 to assess its impact on their union-avoidance strategies. The final “persuader” rule may be accessed by clicking here.