Labor Department Issues “Persuader” Rule

Date: March 24, 2016

Measure Would Make It Tougher to Deal with Unions in the Workplace

On Wednesday the Department of Labor announced its final draft of the so-called “persuader” rule, a measure that mandates employers disclose relationships with any consultants they hire in order to “persuade workers not to form a union or support a union’s collective bargaining position,” the New York Times reports. The Labor Department argues the rule “is necessary because workers are frequently in the dark about who is trying to sway them when they exercise their labor rights.” Labor Secretary Thomas Perez said during a conference call, “In many organizing campaigns, decisions that workers make about whether to choose to stand together are often influenced by paid consultants, or persuaders, who are hired by employers to craft the management message being delivered to workers. About 75 percent of employers hire such persuaders, and too often, workers do not know.”

However, expansion of a law that the Times points out is based upon regulations that have been in place since 1959, and that already mandated that employers disclose the hiring of consultants, is clearly a regulatory overreach that is not in the best interests of businesses. IndustryWeek reports the new rule would require the reporting of “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.” This is a broad interpretation opposed by business groups, with Reuters reporting that these groups argue the new regulation would harm employers’ free speech rights.

What this Means for Small Businesses

Small business owners face additional erosion of their rights under the Labor Department’s new “persuader” rule. The Hill reports that in addition to the silencing of employers’ free speech the rule might create, NFIB Small Business Legal Center Senior Legal Counsel Beth Milito points out that small business owners would face a “catch-22” under the rule. She argued, “The Department of Labor would require an attorney labeled as a persuader to disclose their other clients, which is a breach of confidentiality. They have to realize that this would make it virtually impossible for most lawyers to offer advice to business owners.”

Additional Reading

The Philly (PA), Politico Pro, and the Charleston (SC) Post and Courier are among the additional outlets covering the Labor Department’s new rule.

Note: this article is intended to keep small business owners up on the latest news. It does not necessarily represent the policy stances of NFIB.

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