The Department of Labor is proposing to issue a regulation adopting the plain meaning of “advice” to revise the interpretation of the reporting obligations of labor relations consultants under sec. 203(d) of the Labor Management Reporting Disclosure Act of 1959.
Current law requires employers and labor relations consultants to disclose agreements whereby the consultant attempts to persuade workers not to exercise their rights to bargain collectively. These disclosure requirements however do not cover merely giving advice to the employer on how to avoid unionization or matters protected by the attorney client privilege.
Since 1962, however, the Department’s interpretation of “advice” has been so broad that many “persuader” activities subject to disclosure have been exempted from the law. For example, if a consultant prepares entire documents (such as the text of captive audience speeches) for an employer, these activities are exempted as mere “advice.” Generally, the test today is whether the activity amounts to contact with employees and whether the employer is free to accept or reject the proffered materials.
The revised interpretation exempts solely advice understood as a recommendation about a course of conduct and would require disclosure of anything intended directly or indirectly to persuade employees not to exercise their rights.
The change is not implemented. The Office of Labor Management Standards is publishing a request for comments. Comments are due 60 days after publication. OLMS may revise the proposed rule again before it may take effect.
