In a letter to Labor Secretary Thomas Perez, ABC Feb. 19 strongly criticized the U.S. Department of Labor’s (DOL) “persuader” reporting rule that would change the long-standing interpretation of “advice” under federal labor law. ABC, along with 53 other employer organizations, reiterated its strong opposition to proposal, while highlighting additional concerns.

If finalized, DOL’s rule will greatly restrict employers’ relationships with third-party labor relations advisors, including attorneys, by greatly expanding the definition of a “persuader,” traditionally a third party who speaks directly to employees about labor relations matters on behalf of an employer. Actions that were previously considered to be privileged communications or advice would now carry onerous requirements for employers and third-party advisors (considered under the rule to be “persuaders”), who would be required to disclose financial relationships with each of their labor relations clients or face criminal charges. 

Primarily, the Feb. 19 letter criticized DOL’s plan to issue its final persuader rule before it begins work on separate rulemaking later this year that will make significant changes to Form LM-21, which employers are required to file when they hire a persuader. The letter also cautioned that the agency’s failure to do so would demonstrate its lack of understanding of the impact both rules will have on employers.

The letter also addressed the persuader rule’s treatment of employers and trade associations offering “seminars, webinars, or conferences” that may trigger the proposed reporting requirements, pointing out that DOL did not include adequate compliance instructions. The inclusion of seminars, webinars and conferences in the proposed rule, coupled with the availability of similar content online, potentially subjects millions of individuals and organizations to new disclosure requirements without clear instructions on what exactly must be disclosed.

ABC and its members have long opposed the persuader rule because it eviscerates attorney-client privilege and infringes upon employers’ right to free speech, freedom of association, and legal counsel. In addition, DOL’s rule would curtail employees’ rights to obtain balanced and informed input from both sides as they decide whether to be represented by a union. The rule would also work hand-in-glove with the National Labor Relations Board’s (NLRB) “ambush” elections rulemaking, which hastens union elections and hands over personal employee data to union organizers, to collectively achieve one of the key objectives of the Employee Free Choice Act. 

In addition to Perez, the letter was also shared with White House staff, the Office of Information and Regulatory Affairs (OIRA), the committees of jurisdiction on Capitol Hill and several states’ attorneys general.

ABC will continue to monitor these rulemakings and alert members of any developments through Newsline.