07/28/2011

Department of Labor Proposes New 'Persuader Activity' Regulations

National Association of Manufacturers (NAM) reports on the regulations and solicits feedback

By Joe Trauger, NAM
Vice President, Human Resources Policy

The Department of Labor announced it will be publishing the notice of proposed rulemaking (NPRM) on "persuader activity" in the Federal Register.  You can obtain a copy of it by contacting my office.  This new rule seeks to "clarify" what type of employer activity is to be considered "persuader activity" that would need to be reported to the Department of Labor. Currently, employers and their attorneys are exempted to disclose any type of labor law advice that they receive from their outside counsels. The Labor Department's proposal seeks to expand the scope of what type of activity will need to be reported while limiting the definition of what is considered labor law advice.

While we continue to look over the 160-page proposed rule, a few highlights that we're concerned about include the following:

• The proposed rule appears to be very broad in scope;
• Persuader activity would include providing material to employers, coordinating or directing the activities of supervisors or employer representatives to engage in the persuasion of employees;
• Persuader activity would include the drafting or implementation of policies for the employer that have an object to persuade employees;
• Under the proposed interpretation, when an attorney "prepares or provides a persuasive script, letter, videotape, or other material or communication, including electronic and digital media, for use by an employer in communicating with employees, the "advice" exemption does not apply and the duty to report is triggered."
• The Department of Labor asserts that reporting of persuader activity under the current interpretation is negligible as a result of what they've determined to be an overly broad interpretation of legal advice that is exempted from being reported;
• The proposed rules not only would change the definition of "advice" but would update the current reporting forms LM-10 and LM-20 and require electronic submission; and,
• If a consultant undertakes persuader activities and also gives advice, the entire agreement or arrangement must be disclosed.

The Labor Department has noted in their announcement that these new proposed regulations seek to address what they feel is a rise in employer efforts to persuade employees not to join a labor union. The Department further states that the current interpretation of what is considered "legal advice" is overly broad and needs to limited to require many more employers and their attorneys to register with the Labor Department publicly as entities that engage in "persuader" activities. We are concerned that the approach taken by the Department may negatively impact the ability of manufacturers to consult with attorneys in order to comply with existing labor laws.

Once the Department files their proposed rule, we will have until August 22, 2011 to respond with formal public regulatory comments.
  
Joe Trauger
Vice President, Human Resources Policy
(202) 637-3127 direct
(202) 365-7927 mobile
Email: jtrauger@NAM.org

National Association of Manufacturers
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Washington, DC 20004-1790