Human Resources News & Insights

Get ready: Feds set up a new hurdle to fighting union efforts

The Obama administration’s pro-union beat goes on: The Department of Labor’s planning to implement new, stricter rules for U.S. employers trying to respond to union organizing efforts.

Changes are coming to an arcane labor law entitled the Labor-Management Reporting and Disclosure Act, which has been in force since 1962, according to a recent notice from the Department of Labor.

Attorney Doug Hass recently wrote about the proposed changes on the Franczek Radelet blog.

A summary of Hass’s report:

The LMRDA requires employers to file reports with the DOL when they hire consultants or contractors (including attorneys) to persuade employees on the issue of unions.

However, the LMRDA has always contained an exception to the reporting requirement for “advice” given to an employer. That exception included an attorney’s drafting of letters or speeches to employees or an attorney’s legal reviews of employer communications.

Only if an attorney (or other consultant or contractor) met directly with employees would the activities become reportable, writes Hass.

The rules get tighter

The NLRB proposal blows those exceptions out of the water. The new proposal, set to go into effect in April, would limit the the “advice exception” to advising employers on what they may lawfully say to employees, on their compliance with the law, or on general guidance about how the NLRB operates.

That means any services provided to an employer that could directly or indirectly persuade workers on the issue of union organizing would become reportable — regardless of whether the outside consultant has direct contact with workers.

Hass lists some of the newly “reportable” activities:

  • Drafting, revising, or providing written materials for presentation, dissemination, or distribution to employees
  • Drafting, revising, or providing a speech for presentation to employees
  • Drafting, revising, or providing audiovisual or multi-media presentations for presentation, dissemination, or distribution to employees
  • Drafting, revising, or providing website content for employees
  • Developing or administering employee attitude surveys concerning union awareness, sympathy, or proneness
  • Training supervisors or employer representatives to conduct individual or group employee meetings
  • Coordinating or directing the activities of supervisors or employer representatives
  • Developing personnel policies or practices, and
  • Conducting a seminar for supervisors or employer representatives.

New headaches, expense

What’s it all mean? That the feds have just added to the time, expense and legal exposure faced by an employer who’s fighting a unionization push from employees.

Here’s Hass’s observation about the effect of the changed regs:

The DOL estimated that its new rules will triple the number of reports that employers must file and increase the reports filed by firms engaged in persuader activities twelve-fold …

The newly defined standards, particularly when combined with the LMRDA’s potential criminal sanctions for willful non-reporting, could substantially interfere with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union activity, and have a chilling effect on employer free speech during such campaigns.




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