“Tell Us More” DOL Passes “Persuader Rule,” And Wants To Know What You And Your Lawyer Are Talking About

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“Tell Us More”
DOL Passes “Persuader Rule,” And Wants To Know What You And Your Lawyer Are Talking About

By: Carl Larson

The U.S. Department of Labor (“DOL”) recently passed its new “persuader rule” which requires that consultants, employers, and their attorneys file detailed reports on any activities related to persuading employees with regard to union organizing campaigns. The obligations include reporting on the extent of legal services contracted for and the amount of money exchanged between an employer and their consultants/attorneys for persuasive activity. The new rule was passed over strong criticism that the rule heavily intrudes upon the attorney-client relationship and will almost certainly be challenged in the Courts.

Persuasive activity includes direct communication to employees or dissemination of materials. However, it now also includes indirect persuasion which essentially includes almost all activities related to running an employer campaign against a union, such as offering advice to the employer about when and where to meet with employees, what information to present, debriefing with supervisors, and identifying materials to disseminate to employees. Even making additions, translations or edits to employer-generated materials could subject a labor consultant or attorney to the reporting obligations under the Labor Management Reporting & Disclosure Act. Routine legal work such as rolling out an arbitration policy could also trigger reporting if done in response to an offhand comment by an employee about the need to be protected from termination.

The guidance given by the DOL surrounding its new rule is highly technical and severely micromanages numerous baffling distinctions between what sorts of activities trigger disclosure and those which do not. For example, an employer may use “off-the-shelf” generic persuader materials, but if an attorney or consultant helps to even select the materials, they will be subject to reporting requirements. The 446-page rule offers more confusion than it does any practical guidance. For a law which provides for criminal penalties, that lack of clarity could hit home very easily.


The new “persuader rule” will put heavy reporting responsibilities on employers, consultants, and their attorneys for innocuous activities which did not require reporting before. This heavy burden adds yet another level of complexity and bureaucratic mess to managing a union campaign. The reporting requirements will hit small employers hardest as they struggle to muster the administrative lifting power required to comply. All employers will be discouraged from seeking advice from counsel in areas that have nothing to do with traditional labor law activities. Until the rule is challenged, employers should expect that most any activity surrounding a union organizing campaign may subject them to significant reporting requirements.



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