The Arkansas Chapter of the Associated Builders and Contractors, Inc. and a coalition of other groups including the National Association of Manufacturers, have launched what is reportedly the first lawsuit challenging the Department of Labor’s controversial final “persuader rule.” The final rule narrows the “advice” exemption from reporting requirements under Labor-Management Reporting and Disclosure Act Section 203 when an employer uses an outside consultant to push back against a union organizing campaign. According to the complaint, the final rule upends 50 years of settled law on the meaning of “advice” and is contrary to “the plain language and stated intent of Congress to broadly exempt such advice from the reporting requirements of the LMRDA.” Among other challenges, the plaintiffs assert that the final rule violates the First and Fifth Amendment rights of their memberships. The final rule, which is effective April 25 and applies to arrangements, agreements, and payments made on or after July 1, 2016, mandates certain disclosures related to third-party consultants (including attorneys) used by employers in crafting and delivering anti-union messages to workers. The DOL’s revised Form LM-10 (employer report) and Form LM-20 (agreement and activities report), with some exceptions, must be filed when an employer and a labor relations consultant make an arrangement or an agreement that the consultant will undertake efforts to persuade the employer’s workers to reject an organizing campaign or collective bargaining effort by a union. Expanded reporting requirement. The Labor Department’s final rule revisions now require reporting of consultant activities involving both direct contact with employees with an object to persuade them, as well as the following categories of indirect consultant activity undertaken with an object to persuade employees:
- Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees.
- Providing material or communications for dissemination to employees.
- Conducting a union avoidance seminar for supervisors or other employer representatives.
- Developing or implementing personnel policies, practices, or actions for the employer.
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