DOL Issues Final Clarification of 'Persuader' Rule

March 25, 2016

The Department of Labor has issued the final interpretation of the Advice Exemption in Section 203(c) of the Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act, (LMRDA), sometimes referred to as the Persuader Rule.

The final interpretation of the term 'Advice' in Section 203 clarifies and expands reporting of direct and indirect 'persuader' activity, and provides employees with information about the use of labor relations consultants by employers, both openly and behind the scenes, to shape how employees exercise their union representation and collective bargaining rights.

Here is a link to the Interpretation of the “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.

The need for clarification came from situations where employees may have heard strong messages from their employer about how to make choices concerning the exercise of the rights as a union, but the employees did not generally know the source of the message their employer gave them.

By knowing that a third party—the consultant hired by their employer—is the source of the information, employees will be better able to assess the merits of the arguments directed at them and make an informed choice about how to exercise their rights.

With this new information, employees can decide if the message they are getting from their employer genuinely reflects the view of their employer and supervisors about issues in their particular workplace or - instead - reflects a strategy designed by the consultant to counter union representation whenever its services are hired.

The practice of using a consultant's opinion or actions that are known to the employer but not the worker is called Indirect Persuader Activity.

Indirect persuader activity occurs when an employer hires a consultant to help defeat a union organizing campaign. The consultant has no direct contact with employees, but it directs a campaign, often formulaic in its design and implementation, for the employer to persuade employees to vote against union representation.

Under this arrangement, the consultant often scripts the campaign, including drafting letters, flyers, leaflets, and emails that the employer distributes to its employees, writing speeches that management gives to employees in mandatory meetings, providing statements for supervisors to use in meetings they are required to hold with employees who report to them, often in one-on-one settings, and controlling the timing, sequence, and frequency of each of these events. Employers hire consultants to engage in this type of indirect persuasion in over 70 percent of organizing campaigns.

For example, if a third party consultant supplies information for use regarding a labor dispute, the rule clarification now requires the consultant to report how he/she obtained the information, such as:

  • Research or investigation concerning employees or labor organizations
  • Supervisors or employer representatives
  • Employees, employee representatives, or union meetings
  • Surveillance of employees or union representatives (video, audio, internet, or in-person).

This final rule is effective on April 25, 2016. The rule will be applicable to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.

Source: Federal Register