New, Stricter Rules for Union Avoidance Consultants

Jul 21, 2016

The new DOL “persuader rule” makes compliance more challenging.

Attorneys, and other consultants, who provide advice to employers dealing with union organizing efforts have, in the past, been required to disclose their activities only if they have direct contact with workers involved in union organizing.

On March 23rd the Department of Labor issued revised, stricter reporting requirements for attorneys who assist employers in their efforts to curtail union activities in their businesses.

The new DOL rules are vigorously opposed by both industry leaders and attorneys.

Terry Potter and Brian Stair, in an article in Labor Relations Law Insider, discuss this controversy.

“Now, under the [Labor] Department’s new ‘persuader’ rule, the hiring of an attorney or consultant to thwart organizing attempts must be reported whenever the third-party consultant engages in persuader activities that go beyond the plain meaning of advice, regardless of whether there is direct contact with employees.”

Distinguishing between “persuader activities” that must be reported and “advice” that does not need to be reported is going to be challenging for employers. The new rule increases the uncertainty associated with complying with DOL requirements.

According to the authors, “mere recommendations regarding a company’s decision or course of conduct need not be reported.” Persuader activities such as “planning employee meetings,” and “training …employer representatives to conduct meetings” must be reported. Unfortunately, the distinction between recommendations and persuader activities will be a very fine one.

The National Association of Manufacturers and a “coalition of law firms” have both filed lawsuits opposing the latest disclosure requirements.

But, as Mr. Potter and Mr. Stair observe, until the new rule is successfully challenged, building contractors, and their attorneys, must structure their meetings to conform to the new persuader rule requirements.


Union Avoidance Consultants Under Attack, Terry Potter and Brian Stair, Labor Relations Law Insider, April 21, 2016