Department of Labor’s “Persuader” Rules Being Rescinded - American Society of Employers - Michael Burns

Department of Labor’s “Persuader” Rules Being Rescinded

Under the Obama Administration’s National Labor Relations Board (NLRB) and the Department of Labor (DOL), two sets of rules intended to tip the scales in favor of labor organizing were published in 2011 – the Quickie Election Rules and the Persuader Rules.  One of them is going away.

The Quickie or Ambush Election Rules limit an employer’s response as well as its ability to challenge unfair union organizing tactics.  The Persuader Rules further gag an employer’s response to unionization by requiring government reporting whenever discussions between the employer and their paid outside legal counsel or consultant (including your employer’s association – ASE) occur.

The Quickie Election Rules remain in place for now. There is proposed legislation intended to return to the previous timelines and legal rules that governed previously. But it was only recently introduced and is still in Congress.

The Persuader Rules were enjoined by the Fifth Circuit in November 2016. With the pro-business Trump Administration taking charge and a more moderately pro-employer Secretary of Labor Acosta affirmed as the head of the DOL, the Trump Administration’s DOL has now started proceedings to have the Persuader regulations withdrawn.

Why were these rules so problematic for employers? Labor law can be very complicated in the do’s and don’ts surrounding organizing. If onerous enough, employer or business owner actions in response to a union drive can be found illegal and result in a union being put in place even without an election. Employers are advised to work with experts such as their qualified labor legal counsel or a union avoidance consultant to effectively and legally respond to any organizing of their workforce.

The old rule required reporting if these outside paid consultants or attorneys spoke directly to the workers. As said above, the new rules required reporting even if these consultants, attorneys (or even ASE) kept their advice and counsel to management. As a further example, under the Persuader Rules and of immediate concern to ASE members, if ASE hosted a roundtable or a class that addressed union free issues, everyone attending would have to report their practices to the government and this information in turn would be available to the public.

Despite the legal and positive employer-employee basis for obtaining advice and counsel to properly conduct union free activity, this reporting requirement would no doubt cause an employer to think twice about using outside experts for fear they would be accused of engaging a “union buster.”  Pro-union parties would use this as propaganda to the employer’s workers and community.

Just this past week on June 12th the DOL issued a notice proposing the rescission of the Persuader Rule. The DOL stated this action is “part of this agency’s continuing effort to fairly effectuate the reporting requirements of the Labor-Management Reporting and Disclosure Act.” (CCH What’s New (6/17/2017) With the Court injunction and now the rescission of these rules, no reporting is required, and the disclosure requirements previously in place continue on.

ASE is pleased it can continue to offer roundtables and classes addressing positive employer-employee relations topics and provide information and explanation on law, regulation, and employer policy and practice to management without concern about onerous and chilling government reporting requirements.

 

Source: CCH Compliance Library What’s New (6/19/2017)

Please login or register to post comments.

Filter:

Filter by Authors

Position your organization to THRIVE.

Become a Member Today