Earlier this year, the DOL proposed a rule that would change many decades of interpretation of a federal law known as the Labor-Management Reporting and Disclosure Act (LMRDA). The effect of the proposal is to radically expand the definition of "persuader" activities while limiting the definition of "advice" activities. The distinction is very significant: if an employer and an advisor — like a lawyer or consultant — are engaged in the former, each must file reports with the federal government disclosing, among other things, the agreement to perform persuader activities, including the financial terms of that agreement.
The DOL took comments on its proposed rule, even extending the comment period. That period closed last week. The proposed rule elicited nearly 6,000 comments, including submissions from the U.S. Chamber of Commerce and many other business and labor groups.
Indeed, in a sign of just how significant the proposed rule is, even the American Bar Association (ABA) submitted comments to the rule. The ABA comments (pdf) focus on the impact of the proposed rule on the attorney-client relationship, and the ability of labor lawyers to provide advice to their clients. The ABA notes that, with respect to lawyers, the new interpretation "would essentially nullify the advice exemption contained in the statute and thwart the will of Congress. . . ."
Labor professionals should monitor the developments on this important, proposed rulemaking. The impact of these regulations on employer speech during a union organizing effort could be quite significant. If the DOL’s proposed interpretation is adopted, labor professionals will need to be prepared. Consulting now with labor counsel is an important first step.