August 10, 2020

Volume X, Number 223

August 10, 2020

Subscribe to Latest Legal News and Analysis

Labor Department: Changes to Interpretation of Advice Exemption Apply Only to Agreements, Arrangements Entered Into After July 1

The United States Department of Labor published its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act on March 24, 2016. Under the DOL’s new interpretation, employers/clients as well as consultants/attorneys 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. (For details, see our article, DOL’s Rule Redefining LMRDA ‘Advice Exception’ and Expanding Types of Activities Considered Persuasive, Reportable is Finalized – Effective Late April 2016.)

The final rule is to take effect on April 25, 2016. Nevertheless, the final rule stated that it would be applicable only to arrangements and agreements (and payments associated therewith) entered into on or after July 1, 2016. It was unclear whether the final rule would require reporting for arrangements and agreements entered into between April 25, 2016, and July 1, 2016, if the payment was made after July 1.

The DOL has clarified its position on this issue. In connection with one of the lawsuits against the DOL challenging the overall validity of the final rule, the agency in a status report filed with the court stated:

The Department will not apply the Rule to arrangements or agreements entered into prior to July 1, 2016, or payments made pursuant to such arrangements or agreements. Consequently, under the Rule no employer, labor relations consultant, or other independent contractor will have to report or keep records on any activities engaged in prior to July 1 that are not presently subject to reporting, or file the new Forms LM-10 or LM-20 (revised pursuant to the Rule) for any purpose prior to July 1.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 113

TRENDING LEGAL ANALYSIS


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-...

212-545-4000
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