November 22, 2017
    What is the 'persuader rule' and why are associations weighing in on it?

    The U.S. Labor Department issued this week the final rule on what is known commonly as the "persuader rule," which forces employers to disclose to their employees who is behind anti-union organizing rhetoric. In other words, a employer has to say whether they hired a consultant to fight union organizing. Previously under the Labor Management Reporting and Disclosure Act disclosure of such hiring of third-party consultants was required only if the the consultant had direct contact with the employees.

    Labor Secretary Thomas Perez said, "Workers should know who is behind an antiunion message. It's a matter of basic fairness."

    The union AFL-CIO claimed victory. President Richard Trumka said: “This long-awaited rule will increase transparency about employers’ activities when they hire outside third parties to do their union busting. It takes great courage for working people to come together to form a union. Working men and women deserve to know who their employer is hiring and exactly how much they are spending to discourage workers from forming a union.”

    Teamsters general president Jim Hoffa said: "This is a modest rule change. It will increase transparency about company activities and will not be a heavy burden to firms who have to file. The form is only two-pages long, which pales in comparison to the hundreds of pages of financial disclosure forms unions fill out."

    Trade associations in industries where unions are prevalent have railed against the rule, which has been anticipated since 2011. They believe the new rule expands what employers  have to report when it comes to labor information disseminated to employees.

    National Association of Manufacturers CEO and TRENDS Association Executive of the Year Jay Timmons said: "For small and medium-sized manufacturers especially, this ‘revision’ could silence employers for no good reason. This is just the latest in a series of so-called ‘tweaks’ from the Department of Labor and the National Labor Relations Board, which, in reality, are overreaching and drastic overhauls to longstanding policy that will fundamentally upend the manufacturing workplace."

    National Retail Federation government relations SVP and past TRENDS Leading Association Lobbyist David French said; “DOL’s new rules would trigger reporting requirements for any communications that could even indirectly persuade workers regarding collective bargaining. NRF is concerned that the new standard will discourage employers from seeking advice of counsel in a broad swath of areas that have nothing to do with traditional persuader activities.”

    Associated Builders and Contractors legislative and political affairs VP Kristen Swearingen said: “The final rule is clearly an attempt by DOL to restrict employers from communicating the potential pros and cons of unionization with their employees and, along with the flawed ‘ambush election rule,’ is the administration’s attempt to achieve the goals of its failed ‘card check’ proposal by regulation. ABC is committed to fighting this burdensome, costly and poorly crafted rule through every available avenue.”

    Beth Milito, Senior Legal Counsel at the National Federation of Independent Business Small Business Legal Center, said: “The Department of Labor, at the bidding of union allies, is attempting to deprive business owners of legal advice during a time when they need it the most. Labor law is extraordinarily complex and a small business owner could easily find themselves in hot water if they don’t understand the rules governing union elections. The new persuader rule is a perverse attempt to tilt the playing field in favor of unions.”

    U.S. Chamber labor, immigration and employee benefits SVP Randy Johnson said: "By expanding reporting requirements and making it more difficult to comply, the goal of the persuader rule is to discourage attorneys from offering labor relations services. Ultimately, this will limit employer access to counsel and stifle employer speech, thereby providing more opportunities for unions to catch unsuspecting employers mistakenly running afoul of complicated labor laws."

    Association TRENDS