eLABORate: DOL Expands Employers' Duty to Report 'Persuader Activities' Under the LMRDA

March 28, 2016

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:

  • Direct Communications with Workers. This is any consultant-to-worker interaction to sway the worker against a union. The interaction can be in person, by telephone, through written materials or by any other method of communication.
  • Planning, Directing, or Coordinating Employer-Worker Interactions. This is a consultant who uses management personnel to influence workers. The consultant works behind the scenes instead of directly with workers. For example, a consultant might select employees to interview and what to discuss. They might also decide when, where, how and for how long. Afterwards, the supervisor typically reports to the consultant to decide next steps.
  • Providing Material or Communications for Employer to Give to Workers. This includes generic, off-the-shelf materials, such as videos or literature, that a consultant selects, tailors, translates, edits, revises or distributes for a specific employer. Explaining off-the-shelf materials alone is not reportable.
  • Conducting Union Avoidance Seminar for Employer. This is when a consultant holds or selects a seminar for an employer to develop anti-union tactics and strategies. It is not an employer merely attending a sales pitch or multi-employer seminar, conference or webinar. 
  • Developing or Implementing Policies, Practices or Actions for Employer. This includes a consultant creating policies or identifying workers for personnel action (i.e. reward or discipline) to influence union views. It does not include a lawyer’s review of a proposed personnel action.

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.