By Pamela Wolf, J.D. The long-awaited so-called “persuader rule” that would require certain disclosures related to third-party consultants (including attorneys) used by employers in crafting and delivering anti-union messages to workers has been finalized and released by the Labor Department’s Office of Labor-Management Standards (OLMS). The final rule, which is slated for publication in the Federal Register on March 24, revises two public disclosure reporting forms: Form LM-10 (employer report) and the Form LM-20 (agreement and activities report). Generally, with some exceptions, these reports 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. First proposed on June 21, 2011, the final rule has been long in the making, yet drew immediate criticism. Revised forms. The revised forms are not yet available electronically. However, Form LM-20 Facsimile and Form LM-20 Instructions, as well as Form LM-10 Facsimile and Form LM-10 Instructions are now available in pdf. Form LM-20 will be available electronically on July 1, 2016; Form LM-20 will be available on January 1, 2017. LMRDA Section 203. The final rule makes changes to the employer and labor relations consultant/“persuader” reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 requires employers and labor relations consultants to report their agreements or arrangements under which the consultant undertakes activities with an object, directly or indirectly, to persuade workers about their rights to organize and bargain collectively. This requirement is subject to an exemption in Section 203(c), which provides that no one is required to file a report covering the services of a consultant “by reason of his giving or agreeing to give advice” to the employer. Changes to Section 203 reporting. Under the controversial changes made by the final rule, an employer-consultant agreement is reportable if a consultant engages in “persuader activities.” These are defined as any “actions, conduct or communications that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights.” Under a typical reportable agreement or arrangement, a consultant agrees to manage a campaign or program to avoid or counter a union organizing or collective bargaining effort, either jointly with the employer or separately. Under the DOL’s prior interpretation of Section 203(c), the employer and consultant would be required to file a report only if the consultant communicated directlyto the workers. The final rule requires that both direct and indirect activities must be reported. In addition, the final rule mandates that consultants must also file reports when they hold union avoidance seminars for employers. However, employers are not required to report simple attendance at these seminars. The Labor Department provided this summary of the final rule. Activities that trigger reporting. Under the revised Section 203 interpretation set forth in the final rule, consultant activities that trigger reporting include direct contact with employees with an object to persuade them, as well as these 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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