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E-Alert!!!
  
DOL Persuader Rule Published!
  
Takes Effect for Transactions on or after July 1st!
  
The United States Department of Labor has revamped and published a new "final rule" on the interpretation of the "Advice" Exemption to Section 203 ( c) of the Labor Management Reporting and Disclosure Act (LMRDA).

As a brief backdrop, the LMRDA requires employers as well as lawyers and labor relations consultants to report, to the DOL, any agreements and activities undertaken to persuade employees concerning their right to organize and bargain collectively. Employers report to the DOL via a LM-10 Employer Report with lawyers and labor relations consultants utilizing a LM-20 Agreement and Activities Report for this purpose. In this latter regard, the LM-20 would identify the name of the employer, the terms of the engagement, the scope of services to be provided, and the group of employees and union involved, if any (thus helping to flag employers who may fail to fill out the LM-10).

Section 203 ( c) of the LMRDA provided an exemption and relief from this obligation when mere advice and counsel was provided in such a way that so long as the lawyer or labor relations consultant was not directly engaging employees and trying to persuade them not to join a union, then such counsel would not be reportable by either the employer or the labor relations consultant. Thus, collaboration with managers alone in a variety of contexts was exempted from these reporting requirements.

However, effective for arrangements, agreements and payments that take place on or after July 1, 2016, indirect as well as direct persuader activities will now become reportable.

So what could constitute "indirect persuasion activities"?
  • Planning, directing or coordinating supervisors in how they handle meetings and interactions with employees on organizing activities;
  • Drafting, editing and providing materials for management to distribute to employees if the "object" is to persuade employees on the subject of union organizing;
  • Attendance at seminars IF the consultant develops or assists participants in developing and crafting anti-union tactics and strategies;
The rule does point out however no reporting is required when;
  • Guidance is provided to management on employer personnel policies and best practices;
  • Conducting a vulnerability assessment or employee opinion or engagement survey;
  • Counseling management on what they may lawfully say to employees.
Employers who have to fill out the LM-10 will be required to do so within 90 days of the end of the employer's fiscal year. In so doing, the following must be identified in the completed form:
  • Date(s) of each reportable arrangement, and amount(s) of each transaction(s) made pursuant to each arrangement;
  • The name, address, and position of the person(s) with whom the agreement or transaction(s) were made; and
  • A full explanation of the circumstances of all payments made, including the terms of any agreement or understanding pursuant to which they were made." [Including submitting a copy of any written agreement between the employer and the lawyer or consultant.]
Finally, the LM-10 must be signed by the employer's President and Treasurer (or officers of the corporation who hold such roles) under penalty of perjury.

You can view the final rule as well as the revised forms and instructions by clicking here.

Many groups have threatened litigation and efforts to block its implementation and we will keep you posted on further developments.
  
  
  


   
  
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