On March 24, 2016 the Department of Labor published a final rule which narrowed the advice exemption in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA).
The rule modification changes the instructions for filling out Form LM-10, which reports persuader agreements and arrangements and will go into effect beginning July 1, 2016.
Previously, this form had to be filed when a labor relations expert or legal counsel engaged in direct contact or communication with any employee for the purposes of persuading them and in effect influencing them to join or not join a union. A report now must be filed even if a labor relations expert or legal counsel has no direct contact with any employee as long as they are involved in:
- The planning and/or scheduling of meetings between management and employees for the purpose of persuading employees concerning union organizing, even if the labor relations expert or legal counsel is not present at these meetings.
- Providing communication materials (letters, speeches, posters, etc.) other than boilerplate, “off-the-shelf” materials. If a labor relations expert or legal counsel rewords communications written by the employer in order to make the material more persuasive, Form LM-10 must be filed.
- Conducting union avoidance seminars
- Developing personnel policies which would have the effect of persuading employees
Failure to meet the LMRDA reporting requirements, can have serious repercussions such as a $10,000 fine and a year in jail.
In reaction to this new rule, numerous lawsuits have been filed against the U.S. Department of Labor with the most recent being filed by the Coalition for a Democratic Workplace (consisting of over 600 organizations) as well as 7 other plaintiffs.
The rule not only increases the reporting burden on both employers and advisors but it also could make it difficult for smaller employers to get advice on HR and personnel issues. Smaller employers could also have difficulty in knowing when or if to report persuader activity as well as incur increased costs for consulting attorneys on the need to report.
As stated recently by John Hawkins, MPI President|CEO, “this ruling could have a chilling effect on employers seeking help in navigating a union campaign. This is just one more advantage being given to unions who are currently winning a higher percentage of representation elections than in previous years”.
MPI Consulting works directly with employers or with employer’s General Counsel to manage labor campaigns in partnership with more than 150 law firms across the U.S. to help clients remain union free. Contact Us for a Free Consultation.