On March 23, 2016, the Department of Labor enacted its new Persuader rule, which went into effect on April 25, 2016. Pursuant to this new rule, employers are now required to file detailed reports with the Department of Labor (“DOL”). These reports must disclose any type of consulting or legal services the employer is provided in connection with advice on addressing union organizing campaigns. Specifically, employers must disclose this information to the DOL if its attorney or consultant engages in activity that constitutes direct or indirect “persuasion.”
An employer’s attorney or consultant engages in direct “persuasion” if he or she engages in direct contact or communication with any employee, with the objective of addressing matters regarding the exercise of the right to be represented by a union. With respect to indirect “persuasion,” an employer’s attorney or consultant engages in this type of conduct if he or she consults with the employer to provide advice on how to address matters regarding its employees wanting to exercise the right to be represented by a union. Some clear examples of indirect persuasion include the following:
1) planning, directing, or coordinating the employer’s meetings and interactions with employees;
2) providing materials for circulation to the employees;
3) conducting union avoidance seminars for supervisors and other employer representatives; or (4) developing or implementing policies, intended to persuade employees regarding their rights to engage or refrain from engaging in union organizing activities. In sum, employers must now disclose all acts of direct and indirect “persuasion” on behalf of its attorney or consultant.
It is important to note that this new rule is only applicable to agreements or arrangements made on or after July 1, 2016, and to payments made pursuant to arrangements or agreements entered into on or after July 1, 2016. In order to take advantage of the DOL’s grandfathered exemption, we are proposing that our clients make a slight amendment to their retainer agreements with our firm, to specifically include any future services which may be deemed to be indirect persuader and collective bargaining activities.
If you have any questions on the Department of Labor’s new Persuader rule, please feel free to contact Cory A. Iannacone, Esq., a member of Rhoads & Sinon LLP’s Labor and Employment Law Department, at (717) 237-6778 or firstname.lastname@example.org.