More Disclosures Required for Employers and Labor Consultants

Iseman, Cunningham, Riester & Hyde LLP
Albany/Poughkeepsie, New York

As labor groups lauded the United States Department of Labor’s final rule on persuader reporting which requires employers to report agreements with consultants working on union organizing activities, employers expressed concern that the rule interferes with internal business affairs.

Labor organizations and employers have been required for decades to disclose information about any consultant retained in connection with labor campaigns, but only if the consultant did not have direct contact with employees.

According to the Office of Labor Management Standards (OLMS), the final rule, released March 23, 2016, provides more transparency to employees and requires that reports be filed by employers and the consultants they hire, for both direct and indirect persuader activities.

Consultant activities that trigger reporting of an agreement or arrangement with an employer include direct contact with employees with an object to persuade them to not support a union organizing effort, as well as the following categories of indirect consultant activity undertaken with an object to persuade employees:

Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives including meetings and interactions with employees
Providing material or communications for dissemination to employees
Conducting a union avoidance seminar for supervisors or other employer representatives
Developing or implementing personnel policies, practices or actions for the employer

Employees will now be given more information about the source of campaign material, which helps them make a more informed choice in exercising their rights, notes the OLMS website.

Those expressing concern about the final rule argue that unions use sophisticated techniques to motivate employees and feel management should be offered the same opportunity. Some lawyers contend the new requirements violate attorney-client privilege, despite DOL’s claims to the contrary.

The rule, which takes effect April 25, 2016, will primarily affect employees faced with deciding to support or oppose a union’s effort to represent their workforce. It will be applicable to arrangements, agreements, and payments made on or after July 1, 2016.

Resources:

Final Rule and Summary: http://www.dol.gov/olms/regs/compliance/ecr/Persuader_OverviewSum_508_2.pdf
Questions and Answers About the Persuader Final Rule: http://www.dol.gov/olms/regs/compliance/ecr/Persuader_QA_508.pdf
Forms for employers and consultants: http://www.dol.gov/olms/regs/compliance/ecr.htm
For Health Care Providers: The American Hospital Association claims the rule will be burdensome for hospitals. Read the AHA statement.

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