Opponents of a proposed revision of the "advice" exemption of the Labor-Management Reporting and Disclosure Act (LMRDA) of 1959 would restrict access to legal counsel and forward an organized labor agenda.
The Department of Labor proposes to revise its interpretation of the ''advice'' exemption of LMRDA by limiting the definition of what activities constitute advice – which, in turn, expands those circumstances under which reporting is required of employer-consultant persuader agreements.
LRMDA requires employers to report to the government any arrangement with a labor relations consultant in which the "consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively." The consultant must also report such arrangements to the government.
The DoL explained in its proposed change notice that the current interpretation of "advice" is too broad and may allow persuader activity to be labeled as advice.
Others disagree.
"We're opposed to this rule because it basically takes away an employer's right to advice regarding a campaign, and how they can communicate with their employees to present their guaranteed right to free speech about unions," said Paul Williams, senior director of government relations at the Assisted Living Federation of America (ALFA), a national advocacy group for operators of senior living communities and their clients.
"Under the interpretation that they're proposing it would make virtually any consultation with a labor lawyer during a union campaign as pretty much persuader activity and they would have to be disclosed," he said. The result, he said, would be restricted access to legal counsel.
Charles Caulkins, managing partner in the Fort Lauderdale, Fla. office of Fisher & Phillips, a national law firm representing management in labor and employment law matters, agreed, saying lawyers would find the paperwork burdensome, the possibility of criminal sanctions for inaccuracies off-putting, and the revelation of its fees and their clients outrageous.
"There's been no information that I've seen that calls for this kind of expansive change in the regulations. There's no problem here," Caulkins said.
The real force driving this change is organized labor, said Caulkins and Williams.
They say this proposed change is a strategy by organized labor and those in the administration of President Barack Obama who back organized labor to legalize parts of the failed Employee Free Choice Act.
"Behind the scenes, what's going here is trying to reward this constituency of the Obama administration with rulemaking which they can't get accomplished in Congress," said Caulkins.
"They couldn't get the Employee Free Choice Act to pass during the last few Congresses," Williams said. "The new tactic the administration is orchestrating is through the (National Labor Relations Board) and through the Department of Labor. They are taking provisions of the Employee Free Choice Act and are attempting to enforce them through federal regulation."
The DoL denies any connection between the proposed changes and advancing an organized labor agenda.
"The proposed rule is not related to the Employee Free Choice Act or any other proposed legislation," said Jason Surbey, a spokesperson for the DoL's Office of Public Affairs. "Rather, the proposed rule represents the Department of Labor's ongoing effort to effectively administer the disclosure requirements of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)."
The DoL will be accepting comments on the proposed changes through August 22.
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