When to Report Activity Under the Persuader Rule

You’re not a labor expert and you want help in communicating with your employees about unions. But some of that help may be reportable to the Department of Labor. The guide below will help keep you determine when public reports have to be filed. The following does not constitute legal advice, and you may want to consult a labor lawyer. You should also check out the Labor Department guidelines on what constitutes reportable “persuader activity,” which can be found at www.dol.gov.

When you Don’t Need to Comply With Reporting Requirements

As long as an employer is communicating the previously listed messages lawfully to employees, without bringing in outside consultants or ABC staff to speak to the employees on the employer’s behalf, no reports need to be filed with any government agency. The employer is also allowed to get advice from outside consultants, including ABC staff, on how to communicate the merit shop message to employees under current rules of the US Department of Labor (USDOL).

When you Do Need to Comply with Reporting Requirements

The Labor Management Reporting and Disclosure Act (LMRDA) contains a reporting requirement that comes into play whenever an employer makes anagreement or arrangement with an outside person for that person to directly or indirectly persuade the employer’s workers on the subject of unions. So if an employer decides to have an outsider talk to the employer’s employees about unions, both the employer and the outside person must file reports with USDOL that will be posted on the internet. The current rules contain a very important exception for “advice.” The persuader reporting rules apply to lawyers, consultants, and association staff. This means that any time an employer agrees to have a lawyer, consultantor ABC staff member talk to the contractor’s employees about unions, a reporting requirement is likely to arise. ABC recommends that its members, as well as any ABC lawyers, consultants or staff, fully understand the applicable reporting requirements that may come into play before anyone other than a member of the member contractor’s management communicates with their employees about unions.

Note that the reporting requirements may apply even though the communications are completely in compliance with the “TIPS” rules under the National Labor Relations Act. Even though the persuader communications may be perfectly legal, they have to be disclosed publicly if anyone other than a member of theemployer’s management team communicates with the employees.

Under current rules of the US Department of Labor, no reports have to be filed ifan employer simply receives “advice” on the subject of unions. Such advice caninclude vital information about collective bargaining, scripts and talking points foreffective employer communications, training seminars for management, flyers and videos, and internet postings. The key factor in determining whether these or other activities constitute advice is whether the final communication to the employees comes from the employer, not the outside advisors.

USDOL has recently proposed new rules that would greatly expand the reporting requirements for employers and their advisors by severely limiting the “advice” exemption. If and when such rules become final, ABC will give notice to its members, who may then need to change their methods of communicating with employees.
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