The Department of Labor’s Office of Labor-Management Standards (OLMS) June 21 published a notice of proposed rulemaking that would expand the circumstances in which consultant services provided to an employer that are used to inform employees about their rights to collective bargaining would have to be reported by both the consultant and the employer. 

Currently, under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA), attorneys and other third parties are exempt from reporting requirements as long they are providing to employers what is considered “advice” and do not speak directly to employees.  

Under the existing “advice” interpretation, an employer-consultant agreement does not need to be reported if the consultant has no direct contact with employees and only provides to the employer (or supervisors) advice or materials for use in persuading employees, which the employer has the right to accept or reject. 

The notice of proposed rulemaking would significantly narrow the exemption by redefining “advice” to be “an oral or written recommendation regarding a decision or course of conduct.” The expansion of the definition means reportable activity includes anything that has both a direct and indirect objective to persuade employees, known as “persuader activities.” 

Under the proposed rule, reportable persuader activities would be triggered through any direct or indirect actions, conduct or communications by the consultant on behalf of the employer intended to persuade employees concerning their rights to organize and bargain collectively. In addition, any activity in which a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort would be reportable. This would likely include information given by associations to their members that concerns collective bargaining. 

Examples of consultant “persuader activity” that no longer fall under the exemption include: 

• persuader material given to employers to disseminate to employees; 
• coordinating the activities of supervisors or employer representatives to engage in the persuasion of employees; 
• drafting or implementing policies for an employer that have an objective to persuade employees; and 
• seminars, webinars and conferences offered by lawyers or labor consultants that offer guidance to attendees on how to talk to employees about their collective bargaining rights or that offer any materials for attendees to distribute to employees. 

Activities that would still fall under the “advice” exemption and would not be reportable include: 

• ensuring a client’s compliance with the law; 
• providing guidance on the National Labor Relations Board practice or precedent; 
• counseling employer representatives on what they may lawfully say to employees; and 
• any representation provided by the consultant before a court, administrative agency, arbitration tribunal or in collective bargaining. 

Under the proposed rule, if any part of an agreement or arrangement triggers reporting requirements, then the entire agreement or arrangement would be reportable. 

In addition to narrowing the exemption in LMRDA, the proposed rule would also revise the Forms LM-10 and LM-20 to outline the reporting requirements and to include a checklist of activities that filers could use to identify covered actions. The forms would also be filed electronically. 

DOL is accepting comments on the proposed rule and ABC will file comments by the August 22 deadline. 

For more information, visit the DOL website.