By now, I assume most employers and others who keep up with developments in labor and employment law are familiar with the U.S. Department of Labor’s (DOL) controversial “persuader rule” that was set to take effect on July 1 of this year. For those who are not familiar with it, here is a summary of what all the fuss is about, followed by some recent court developments.
In 1959, Congress amended the National Labor Relations Act (NLRA) by passing the Labor Management Reporting and Disclosure Act (LMRDA). The main purpose of the LMRDA was to rid organized labor of corruption and also make it more democratic. However, the LMRDA also requires labor consultants (including lawyers) to file reports with the DOL identifying their employer clients and the details of the terms of their engagement, including fees paid for their services, if an object of the engagement, either directly or indirectly, is to persuade employees whether or how to exercise or not to exercise their rights to organize or bargain collectively under the NLRA. The law also requires employers who engage consultants for such purposes to file a similar report. These filings are a public record. Willful violations of the LMRDA’s reporting requirements are criminal and are punishable by a fine of up to $10,000 or a year in jail, or both.
However, the LMRDA contains an exception from the reporting requirement for consultants’ “advice” to employers in such matters. Shortly after the LMRDA was enacted, the DOL issued guidance stating that if a labor consultant (including an attorney) did not communicate directly with employees regarding their Continue reading