DOL Announces Final Rule for Reporting & Public Disclosure on All Fees Paid to Attys & Consultants

Mar 23, 2016

Exception for Legal Advice is Extremely Narrowed To Force Disclosure For Any Legal Assistance To Employer in Maintaining Nonunion Status


The U.S. Department of Labor (“DOL”) will publish in the Federal Register on March 24 a new rule that requires employers, and their attorneys and consultants, to file with DOL, for public disclosure, all agreements and all payments to attorneys and consultants for providing advice and assistance for the purpose of maintaining nonunion status. The new Rule reverses 57 years of law that law firm and consultant assistance to employers on how lawfully to maintain nonunion status was exempt from such reporting under the “legal advice” exception of the Labor Management Reporting & Disclosure Act of 1959. The new Rule marks a huge victory for organized labor.


Court challenges to this new Rule are expected. Unless enjoined by a court, the new Rule applies to all such agreements, advice, and payments for same, as of July 1, 2016. 


What Agreements and Payments Must Be Reported


Any attorney or consultant activity which as the object or purpose of dissuading employees from unionizing, including:


  • Drafting of union campaign literature, speeches, audio-visual presentations, or website content;
  • Drafting counter-organizational talks or talking points for supervisors to meet with employees in groups or individually;
  • Meeting with supervisors or management to manage their counter-organizational strategy;
  • Training supervisors in counter-organizational conduct;
  • Coordinating or planning counter-organizational campaign;
  • Establishing counter-organizational policies to inhibit union activity; and
  • Planning personnel actions or disciplines to impact union activity.


 “Legal Advice” Exception Vastly Limited


 The Final Rule reverses the law that employers enlisting attorneys or consultants for expert advice on how to lawfully campaign against unionization-given the technicalities of the NLRB restricting same-was subject to the “legal advice” exception of the statute’s reporting and disclosure requirements. Now, all conduct is reportable as to verbal or written agreements to provide those services AND the fees paid for those services. All will be publically reported-meaning, for instance, that unions will access that information to report to voters what the employers are paying attorneys and consultants to persuade voters to vote against unionization. The exception for non-reportable legal advice is now suddenly extremely limited too, for instance:


  • Explaining the law, but not for the purpose of persuading maintenance of nonunion status;


  • Reviewing employer-prepared counter-organizational literature for lawfulness and grammar, but not to revise for the purpose of editing to achieve or enhance persuading against unionization; Advising regarding legal decisions or course of conduct;


  • Representing the employer in legal proceeding or collective bargaining negotiations. Employers’ activities in buying “off-the-shelf” counter-organizational literature not customized for the employer, or attending trade association seminars for groups of employers on maintaining nonunion status are exempted from the Final Rule.


We will report more developments as this unfolds. For any questions, please contact David Fortney or Steven Semler of FortneyScott.

 

18 Apr, 2024
The EEOC’s final Pregnant Workers Fairness Act (“PWFA”) regulations were republished in the Federal Register on April 19 and will become effective on June 18th. The final regulations and guidance clarified and, in some cases, expanded on employers’ accommodation obligations for pregnancy related conditions from what the EEOC originally included in the proposed regulations.
On March 29, 2024, the Office of Management and Budget published revisions to federal data that cove
09 Apr, 2024
On March 29, 2024, the Office of Management and Budget published revisions to federal data that covered entities must collect on race and ethnicity.
02 Apr, 2024
On January 29, 2024, on the 15th anniversary of the enactment of the Lily Ledbetter Fair Pay Act, the Biden Administration announced a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings. The proposal was published in the Federal Register on January 30, 2024 and comments were due on April 1, 2024.
OFCCP Contractor Portal
26 Mar, 2024
OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024.
14 Mar, 2024
Join our skilled presenters as they discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.
31 Jan, 2024
On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings.
Show More
18 Apr, 2024
The EEOC’s final Pregnant Workers Fairness Act (“PWFA”) regulations were republished in the Federal Register on April 19 and will become effective on June 18th. The final regulations and guidance clarified and, in some cases, expanded on employers’ accommodation obligations for pregnancy related conditions from what the EEOC originally included in the proposed regulations.
On March 29, 2024, the Office of Management and Budget published revisions to federal data that cove
09 Apr, 2024
On March 29, 2024, the Office of Management and Budget published revisions to federal data that covered entities must collect on race and ethnicity.
02 Apr, 2024
On January 29, 2024, on the 15th anniversary of the enactment of the Lily Ledbetter Fair Pay Act, the Biden Administration announced a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings. The proposal was published in the Federal Register on January 30, 2024 and comments were due on April 1, 2024.
OFCCP Contractor Portal
26 Mar, 2024
OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024.
14 Mar, 2024
Join our skilled presenters as they discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.
31 Jan, 2024
On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings.
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-a
17 Jan, 2024
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-awaited final regulation, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act.”
17 Nov, 2023
FortneyScott is pleased to announce that its co-founder Jacqueline Scott became President of the global bar organization, Union Internationale des Avocats (UIA). As President of the UIA, Jacqueline Scott has responsibility for overseeing and leading the UIA’s attorney members in 110 countries. UIA fosters professional development and the exchange of information and ideas internationally, promotes the rule of law, defends the independence and freedom of lawyers worldwide, and emphasizes friendship, collegiality and networking among members. Additional information on Ms. Scott and her new UIA responsibilities is available here .
15 Nov, 2023
For the first time as President of the Union Internationale des Avocats ("UIA"), FortneyScott co-founder Jacqueline Scott attended the 67th UIA Congress in Italy late last month. The UIA is a global, multicultural organization that brings together the legal profession and whose members represent 110 countries. Ms. Scott provided her first Presidential Speech for the closing of the Congress, "Defense of the Defense" . You can view the video or read the transcript is also available.
15 Nov, 2023
FortneyScott and DCI Consulting Group Launch DEI Risk Assessment DEI program evaluation offers privileged critical information to mitigate risk Washington, D.C.: Fortney & Scott, LLC (FortneyScott), a leading Washington, DC law firm representing and advising a broad range of employers, has partnered with DCI Consulting Group, Inc. (DCI), a Washington, D.C.-based human resources data analytics and consulting firm, to offer a comprehensive, multi-disciplined DEI Risk Assessment. Employers and their C-Suites and Boards of Directors are facing growing challenges to their Diversity, Equity, and Inclusion (DEI) programs. In response, employers are turning to Fortney Scott and DCI as outside experts to assess their legal compliance and provide advice as to best practices. As a result, we have developed a proactive, comprehensive, and attorney-client privileged DEI Risk Assessment. This DEI Risk Assessment is a crucial first step to identifying and mitigating potential legal exposure, and includes: 1. Self-Evaluation of DEI Programs & Commitments 2. Listening Sessions with Executives & DEI Leaders 3. Legal Review & Risk Assessment of Policies, Procedures and Practices 4. Scorecard & Best Practice Recommendations “Following the recent rulings by the Supreme Court in UNC and Harvard, it is clear that the legal risks for corporate DEI programs have substantially increased.” said FortneyScott Co-Founder David S. Fortney. “The critical step for employers now is to conduct an attorney-privileged assessment of their DEI programs -- that includes necessary workforce analyses and benchmarking based on best practices -- to determine how their DEI programs should be implemented going forward.” About FortneyScott FortneyScott is a Washington, DC-based law firm counseling and advising clients on the full spectrum of DEI and workplace-related matters. The firm offers clients unparalleled experience and expertise by its attorneys, who formerly held senior positions at the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC) and other government agencies, in corporate and Congressional legal staffs, in major law firms, and who served as a judge on an international tribunal. About DCI DCI Consulting Group is a human resources risk management consulting firm strategically headquartered in Washington, D.C. Members of DCI’s staff are recognized experts in a variety of spaces, including systemic compensation discrimination analyses, affirmative action plan development and implementation, pay equity analyses, DEIA metrics, employee selection and test validation, and OFCCP audit and litigation support. DCI also offers proprietary software and related support to clients. FortneyScott Media Contact: DCI Media Contact: info@fortneyscott.com news@dciconsult.com 202-689-1200 14-448-7355
More Posts
Share by: