After several years of delays, the Department of Labor is expected to publish its final rule addressing the “advice exception” to the “persuader rule” in the Labor Management Reporting Disclosure Act (LMRDA) as early as March 2016. Its final implementation, however, is already expected to be held up by lawyers and congressional leaders.
Currently under the LMRDA, when an employer engages with a consultant to persuade its employees with respect to their rights to organize or collectively bargain, that employer must report such engagement to the Department of Labor. The LMRDA recognizes an “advice exception” to this reporting requirement, which has consistently been applied to situations where an employer engages with an attorney to assist the employer with organizing campaigns. The proposed rule, however, aims to significantly narrow this exception, as an employer that engages with an attorney for such assistance would then also be required to file publicly available reports with the Department of Labor detailing the extensive information regarding the “advice” provided.
Seth Harris, former Deputy Labor Secretary, recently stated that the published rule, “will become a lightning rod for anti-union forces in the business community and in Congress to push back vigorously, both in Congress and in the court.” Specifically, the American Bar Association (ABA) has expressed concerns that such a shift in how the advice exception is interpreted could lead to violations of attorney-client confidentiality.
MSEC will continue to monitor the persuader rule. As the new interpretation of the advice exception could seriously alter the landscape of union organizing in this country, employers are encouraged to contact MSEC right away with any questions about how the final rule may impact them going forward.