The Department of Labor recently issued a final “persuader rule” under the Labor-Management Reporting and Disclosure Act (“LMRDA”). The new rule expands the reporting and disclosure requirements of firms involved in persuader activities – where an object is to persuade employees concerning their rights to organize and bargain collectively. Changing a long-standing understanding that indirect activities, such as drafting communication to employees, coordinating meetings and the like for employers involved in union organizing, were not covered by these reporting requirements, the new rules new expressly include planning or coordinating supervisor activity, providing persuader materials and even conducting seminars or training for supervisors or other training activity even where the consultant/lawyer does not directly meet with employees. Both employers and lawyers would need to file disclosure statements concerning fees, content of consultation and similar information long believed to be privileged.
The rules have been challenged by several employer associations including in the matter of Associated Builders and Contractors of Arkansas, et al. v Perez, Hayes and the U.S. Dept. of Labor. In this case, Natasha Baker and Christin Lawler prepared critical parts of the amicus brief Stephen Hirschfeld submitted a declaration in support of a motion to enjoin enforcement of the new rules. The District Court in Arkansas recently held oral argument and is expected to issue a decision in the next few weeks.