DOL Advice Exception to Union Persuader Rules Moves Forward

The Department of Labor intends to narrow the “advice exemption” to the persuader rules under section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). The DOL sent the proposed revisions to the Office of Management and Budget on December 7, 2015. The DOL expects to have the revisions finalized by March 2016. Employers, consultants to management, and defense attorneys potentially face significant reporting changes when responding to a union organizing effort.

The American Bar Association argues in 2011 comments to the DOL,

“…the Department’s current broad interpretation of the advice exemption—which excludes lawyers from the Act’s “persuader activities” reporting requirements when they merely provide advice or other legal services directly to their employer clients but have no direct contact with the employees—should be retained with respect to lawyers and their employer clients for several important reasons.”

The ABA summarizes key concerns within the legal industry, also in their 2011 comments, as follows,

In its Proposed Rule, the Department has proposed major changes to its longstanding interpretation and application of Section 203 that would require lawyers who both provide legal advice to employer clients and engage in any persuader activities to file periodic disclosure reports, even if the lawyer has no direct contact with the employees. These reports, in turn, would require lawyers (and their employer clients) to disclose a substantial amount of confidential client information, including the existence of the client-lawyer relationship and the identity of the client, the general nature of the legal representation, and a description of the legal tasks performed. The lawyers also would be required to report detailed information regarding the legal fees paid by all of the lawyers’ employer clients, and disbursements made by the lawyers, on account of “labor relations advice or services” provided to any employer client, not just those clients who were involved in persuader activities.

Click on the link for more information on the Persuader Agreements: Employer and Labor Relations Consultant Reporting Under the LMRDA.

Click on the link to read the American Bar Association’s comments regarding the Department of Labor Proposed Rule on the Labor-Management Reporting and Disclosure Act; Interpretation of the “Advice” Exemption.

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