The Department of Labor (DOL) has just issued a final rule that could create sweeping changes in the ways employers conduct union avoidance campaigns. DOL published the final “persuader rule,” in the Federal Register on March 24. The rule represents a major change in what communications must be reported to the government when an employer seeks counsel during a union avoidance campaign.
Before the adoption of the final persuader rule, only direct communications between an outside consultant and employees had to be reported to DOL’s Office of Labor Management Standards (OLMS). These “direct communications” required reports only when labor relations consultants communicated directly with employees about aspects of unionization. If, for instance, an employer hired an attorney or other consultant to make a presentation to employees about how unionization would affect a company’s employees, this would have to be reported to OLMS on set forms determined by the Labor-Management Reporting and Disclosure Act (LMRDA), available at https://www.dol.gov/olms/.
The final “persuader rule” dramatically expands what must be reported when a consultant or attorney provides an employer with outside advice during a unionization campaign, even where the consultant or attorney makes only “indirect communications,” and makes no direct communications to any of the company’s employees. Now both an employer and the outside consultant have to report when:
- A consultant plans, directs, or coordinates the actions of supervisors or managers when the supervisors interact with employees to persuade them about unionization.
- A consultant provides (or even revises) materials or communications to an employer which are designed to be disseminated to employees to persuade them about unionization.
- A consultant creates a presentation or seminar to supervisors that covers how supervisors can persuade employees about their unionization rights.
- A consultant creates or implements personnel policies designed to persuade employees about unionization activities.
All of these types of advice are hallmarks of any strong union avoidance campaign, and this “persuader rule” will create significantly more red tape for any employer who desires to protect their workplace during a potential unionization. It is clear DOL is targeting union avoidance campaigns, so you must pay close attention to these new reporting requirements if you have any unionization issues at your workplace and you bring in outside consultants or legal counsel to guide you through them.
The Labor & Employment team at Woods Rogers is prepared to help with any aspect of union avoidance campaigns, including advice concerning these new reporting requirements.