In March 2016, the U.S. Department of Labor released regulations significantly redefining employer-reporting obligations under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA and its reporting obligations apply regardless of whether an employer has unionized employees.
Under rules in place for decades, and based on the bedrock principle of the attorney-client privilege, employers have been free to seek legal assistance and consultation on labor and employment matters without fear of government intrusion into their private, confidential conversations. Instead, employers and consultants were only required to report when a consultant was engaged by an employer to speak directly with employees. The LMRDA specifically exempted the reporting of “advice” to employers by outside consultants, including lawyers.
If outside attorneys are required to file reports under the LMRDA, the following information must be disclosed:
The new persuader rule, which applies after June 30, 2016, dramatically expands when reporting will be required. The new rules require employers and their consultants to report not only when consultants directly seek to persuade workers, but also when consultants provide services in one of the following four categories:
The difficulty in determining whether reportable activity has occurred is perhaps best exemplified by the requirement to report when an attorney provides advice on the development or implementation of personnel policies or actions. In practice, every policy and procedure is arguably designed to ensure that employees are treated fairly and thereby reduces an employer’s vulnerability to union organizing. When is the reporting line crossed in this instance? If attorneys or employers “guess wrong,” the consequences are harsh-jail time and fines are possible consequences under the law.
You should know, a lawsuit against the U.S. Department of Labor and Labor Secretary Thomas Perez to block what is believed to be the federal government’s illegal intrusion into private conversations regarding employment, labor and Human Resources matters between attorneys, consultants and employers. In the meantime, if you have any questions regarding the new persuader rules or the reporting requirements, let us know at [email protected].
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