August 10, 2020

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August 10, 2020

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DOL’s Rule Redefining LMRDA ‘Advice Exception’ and Expanding Types of Activities Considered Persuasive, Reportable is Finalized – Effective Late April 2016

The United States Department of Labor has announced that it will publish its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA) on March 24, 2016, almost five years after first proposing it. The rule (which was opposed by the American Bar Association, Association of Corporate Counsel, the Attorneys General of many states, most employers and many key trade associations, among others) is briefly summarized below.

Although scheduled to take effect 30 days after publication (i.e., late April 2016), it is likely that the new rule’s implementation and legality will be challenged in court in the next few days. Other efforts (e.g., through Congress) to stop the new rule from being implemented also are likely. We will provide further updates and information regarding the rule prior to the late April 2016 effective date. The rule will be applicable to agreements, arrangements and payments made on or after July 1, 2016.

LMRDA Reporting Requirements

Under LMRDA Sections 203(a) and (b), employers and their “labor relations consultants” must report to the DOL:

[a]ny agreement or arrangement with a labor relations consultant or other independent contractor or organization pursuant to which such person undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing ….

Current Rule

For decades, essentially, only (1) direct persuasive communications between consultants (or attorneys) and employees and (2) indirect communications that did not meet the broad definition of the “advice exception” were reportable to the DOL. The advice exception in LMRDA Section 203(c) exempts from the reporting requirements “the services of such [consultant] by reason of his giving or agreeing to give advice to such employer….”

The current rule, in effect since 1962, is easily understood and simply applied. Direct persuasive communications between a consultant (or attorney) and an employee must be reported. However, communications between a consultant (or attorney) and an employer, manager or supervisor (although persuasive) is deemed advice and is not reportable so long as the client may review, revise and/or reject the advice.

New Rule

Unless halted or delayed by litigation, government action or the next administration, the new DOL rule will compromise the advice exception. In short, the rule’s revised interpretation will attempt to convert into “persuader activity” some of what is now accepted as legal advice. Under the new DOL rule, both the employer/client and its consultant/attorney would be required to report to the DOL all arrangements in which an “object” (directly or indirectly) of the services provided by the consultant/attorney is to persuade employees about the manner of exercising the employees’ “right to organize and bargain collectively through representatives of their own choosing” under federal labor law. The DOL takes the position that the “advice exemption” still applies to an arrangement where the consultant/attorney “exclusively provides legal services.”

Implications

The DOL’s new “persuader activity” rule will make it more difficult for employers to communicate effectively facts and opinions on labor relations matters to employees — a right provided to employers by the National Labor Relations Act (NLRA) — without incurring a reporting obligation. It also likely will interfere with an employer’s right to effective representation by legal counsel, particularly in obtaining legal advice and preserving the confidentiality of attorney-client communications. This advice often is necessary when employers speak to their employees to avoid unlawful or objectionable conduct under the NLRA.

The DOL’s Notice of Proposed Rulemaking that preceded the new rule has been controversial, generating approximately 9,000 comments when it was originally published in 2011 (76 Fed. Reg. 36178). Since then, the DOL has postponed issuing a final rule a number of times as it weighed comments opposing the rule as it would impact on (among other things) attorney-client privilege and confidentiality.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 83

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About this Author

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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James Prozzi, Jackson Lewis, labor and employment law
Principal

James A. Prozzi is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. He represents management in all aspects of labor and employment law.

Mr. Prozzi has advised employers in matters such as union organizational campaigns, unfair labor practice charges, employment discrimination law, wage and hour law, labor arbitrations, labor negotiations and wrongful discharge law. He is the author of numerous articles and a frequent lecturer on various issues involving labor and employment law before bar association groups, business groups, and college and law students.

His experience with novel issues in labor and employment law includes litigating leading cases involving the "comparable worth" claim under federal discrimination law, the definition of "joint employer" under federal labor law, and the definition of a professional employee under the federal wage and hour law.

Mr. Prozzi was a Pennsylvania delegate to the 1986 White House Conference on Small Business and served as an Issue Expert at the 1988 Pennsylvania Governor's Conference on Small Business.

Mr. Prozzi is an Adjunct Professor of Law at the University of Pittsburgh School of Law, teaching Labor Law.

412-338-5185
Daniel D. Schudroff, Jackson Lewis, Employment Litigation Lawyer
Associate

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.  His practice is focused on traditional labor matters, employment litigation, and counseling.  Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of...

(212) 545-4000