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Post-Christmas Employment Law News

I hope everyone had a safe and happy holiday season.  Here is a short link expanding on a new Department of Labor rule that will have a significant impact on labor law in the coming year.

As we touched on in an earlier post, the Department of Labor has been considering publishing a new regulation requiring more stringent reporting by employers to the DOL, and it recently revealed that the new rule will be published in March 2014.  Traditionally, the Labor-Management Disclosure and Reporting Act has required employers and labor consultants to report to the DOL all agreements regarding activities where the employer’s goal is to convince employees “as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.”  In other words, the law requires that employers and hired labor relations consultants report agreements where the employer seeks to limit or control unionization.  This reporting requirement includes extensive financial disclosures from the employer and any consultants.

However, the Act currently includes a significant exemption where the labor consultant only gives “advice” to the employer- a term the DOL has defined as covering situations where the consultant or attorney only provides advice to the employer without any direct contact with employees.  The new rule would change the interpretation of this exemption, and would more narrowly define “advice” to require more reporting by employers and consultants.  Specifically, the new rule redefines “advice” as “an oral or written recommendation regarding a decision or course of conduct.”  It also includes a new category of “persuader activities” that an employer must report.  That category is defined as: “a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object, directly or indirectly, to persuade employees concerning their rights to organize or bargain collectively.”  Observers expect that the new category and broader definition will include such activities as preparing materials for employers regarding unionization and drafting employee handbooks that touch on union and labor law issues.  As such, activities that were previously unreported as “advice” will now have to be reported to the DOL- understandably, many companies and consulting groups are unhappy about the new, and probably expensive, requirements.  Many groups are expected to challenge the rule once it is enacted in 2014.