Organized labor is demanding the government make policy changes in order to increase union membership rolls at the expense of employee free choice and employer free speech. One of Labor’s policy priorities that was fulfilled by the Obama administration was the finalization of the Department of Labor’s (DOL) “persuader” regulation. The regulation altered federal disclosure rules in order to make it more difficult for employers to access legal counsel and legally communicate with employees about the pros and cons of a particular union or unionization in general.
Prior to the new rule, employers, consultants, and attorneys were required to disclose any arrangements to persuade employees about their decision on whether or not to unionize if the consultant or attorney directly communicated with employees. This was designed to ensure employees knew the employer had hired the third party to communicate with them. If the attorney or consultant did not communicate directly with the employees, but instead only advised the employer about how to legally communicate with employees, then no disclosure was required.
DOL’s final persuader rule narrowed the scope of this “advice” exemption so that virtually all interaction between employers and labor lawyers or consultants is subject to the disclosure requirements. In doing this, the DOL effectively limited employer access to counsel, made it harder for employers to find competent representation, and provided more opportunities for unions to catch unsuspecting employers mistakenly running afoul of complicated labor laws. The changes also made it harder for employers to train supervisors on how to communicate with employees about labor issues without violating the law. All of these repercussions make it less likely employers will exercise their first amendment rights to discuss the pros and cons of unionization with employees, which was the desired outcome of the change.
In November of 2016, a federal court in Texas permanently enjoined the final persuader rule. Additionally, on June 12, 2017, the Department of Labor under President Trump issued a new Notice of Proposed Rulemaking proposing to rescind the rule in its entirety.
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