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

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.