As part of a pattern of federal agencies kowtowing to the
interests of unions, the DOL is moving forward with its proposal to significantly
narrow an exemption that allows attorneys to provide confidential advice to
employers throughout the course of union organizing. The provision in question creates an “advice”
exemption from employers’ reporting requirements when hiring a consultant in
connection with attempts to persuade employees about the right to organize and
bargain collectively. If this proposed rule
becomes final in its present form, employers and consultants, including
attorneys, hired to assist in countering union organizing would be required to
publicly disclose their relationship, through the Labor-Management Reporting
and Disclosure Act’s (LMRDA) requirements to report any agreement or arrangement
between an employer and a third party consultant, to persuade employees as to
their collective bargaining rights or to obtain certain information concerning
the activities of employees or a labor organization in connection with a labor
dispute involving the employer. This disclosure
requirement, when applied to attorneys, flies in the face of traditional
notions of attorney-client privilege, and its goal of fostering free and open
communication between attorneys and their clients.
Earlier this year, the NLRB published its so-called “ambush
election” rule, which shortened the time between when a union election petition
is filed and when the election is held, to as little as 21 days. This new election procedure has been in
effect since April 14, 2015, 2015 and already it has drastically impacted
employers’ abilities to respond to union organizing campaigns. Now that ambush
elections are helping unions organize more effectively, the DOL’s persuader
rule should further aid unions by compromising employers’ use of consultants
and attorneys in opposing unionization of their workforces. The proposed rule is being submitted to the
Office of Management and Budget for review, which is a final step to implementation. According to the DOL’s regulatory agenda, it
expects to publish the final persuader rule by March of 2016.
Questions? Contact the attorneys of our Minneapolis office at (952) 746-1700 or email Christine Beggan at chbeggan@wesselssherman.com for more information.
