Proposed Rules Would Limit Advice to Employers on Union Issues

Posted by Mike Rudman on Sep 26, 2011 11:28:00 AM

The U.S. Department of Labor has proposed rules that would force employers to disclose detailed information about any lawyer, association or consultant that helps the company communicate with workers about labor-union issues.

Advice ExemptionAssociated Industries of Massachusetts strongly objected to the proposed rules in comments filed with the Labor Department last week. AIM believes the new rules are part of a radical attempt by the Obama Administration to shift the balance of private-sector labor relations, in defiance of the neutral policies established by Congress over many decades.

“The proposed rules will interfere impermissibly with the attorney-client relationship, will interfere with the right of trade associations to communicate with their employer members, and will interfere with the ability of employers to obtain much needed advice from their peers, their lawyers and experienced labor relations consultants,” AIM and scores of other business groups said in comments filed last week by the Coalition for a Democratic Workplace.

Sandy Reynolds, Executive Vice President of the AIM Employer’s Resource Group, said the rule change would be particularly damaging for small companies, which rely on outside advice because they cannot afford to keep in-house labor relations consultants.

“AIM regularly helps Massachusetts employers create respectful work environments that make labor unions unnecessary.  The Department of Labor rules would discourage employers from obtaining that advice by creating a mountain of bureaucratic disclosure paperwork,” Reynolds said.

The Labor-Management Reporting and Disclosure Act (LMRDA) has for 50 years exempted from disclosure advice that an employer may receive from an outside consultant about communicating with employees about union issues. The proposed rule change would narrow the definition of “advice” and require public disclosure if the consultant provides material or communications, or engages in actions on behalf of an employer “that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively.”

So when a consultant 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. Training or directing supervisors and other management representatives on labor matters would also require disclosure.

AIM believes the responsibility to make such significant changes to the law rests with Congress rather than the Department of Labor. The association also believes that the rule change, combined with moves by the National Labor Relations Board to restrict employer communications during union elections, represents a thinly veiled attempt by the administration to circumvent the will of Congress and implement a “back door” version of the failed Employee Free Choice Act.

Topics: U.S. Department of Labor, U.S. Congress, Organized Labor

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