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According to its latest regulatory agenda released May 23, the U.S. Department of Labor (DOL) plans to finalize its controversial “persuader” final rule by December 2014, which severely narrows long-standing reporting exemptions for employers and third-party experts, and redefines labor relations “advice.”  

If the rule is finalized, it will greatly restrict employers’ ability to receive third-party advice to educate their employees about collective bargaining. Actions that were previously considered privileged communications or advice would now carry onerous requirements for employers, attorneys and association staff.

ABC has long opposed the “persuader” rule and sent a letter this winter to DOL Secretary Thomas Perez expressing opposition to the proposal. In the letter ABC, along with 53 other employer organizations, cited the proposal’s erosion of employers’ right to free speech, freedom of association, and legal counsel, and the curtailing of employees’ right to obtain balanced and informed input from both sides as they decide whether to be represented by a union. 

The persuader rule is designed to work hand-in-glove with the National Labor Relations Board’s (NLRB) proposed “ambush” elections rule, which would dramatically reduce the amount of time between when a union files a representation petition and an election takes place, from a median of around 38 days to as few as 10 days. The proposal also creates privacy concerns by requiring employers to submit their employees’ personal contact information, including email addresses and phone numbers, to union organizers.

The ambush proposal was first issued in December 2011, but was withdrawn in 2013 after a U.S. Court of Appeals sided with the ABC-led Coalition for a Democratic Workplace’s legal challenge that NLRB’s attempts to finalize the rule were unconstitutional. The rule was reissued Feb. 5, 2014, but a final action date is yet to be determined. This spring, ABC and more than 1,200 members opposed the controversial proposal, and general counsel Maury Baskin testified in front of the board itself to request the rule be withdrawn entirely.   

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