Has your company ever hired a consultant or attorney to advise you on how to keep your company free from unions? Many employers do. Soon, the United States Department of Labor (DOL) may require employers to report if they employ such consultants.
Currently, the law mandates employers report if they hire advisors to help them stay union-free. These advisors may include attorneys or labor relations experts. However, this only applies if the advisors talk directly to employees or drafts communications for employers to give to their employees. If an advisor only consults with the employer, no reporting is required. Therefore, most employers do not make a report. This exception made sense in light of the fact that most union avoidance advisers are attorneys, and such reporting would potentially disintegrate the attorney-client privilege. However, the new law seems to ignore the sanctity of the attorney-client relationship.
The new law would eliminate this exception, requiring employers to report the hiring of any advisors who “directly or indirectly persuade workers concerning their rights to organize or bargain collectively.” This would include even an advisor who gives a seminar on how to remain union-free, prepares a speech for the company’s president, or sets forth a company-wide strategy for fighting a union campaign.
Ironically, this additional reporting requirement applies to employer consultants, but does not apply to unions. This is on top of the enhanced free speech protections unions already enjoy under the National Labor Relations Act. Unions cite paid employer-consultants as the main reason why they are not winning union elections (even though their win rate is higher than it has ever been). Unions have an arsenal of highly paid attorneys and consultants on their staff who assist with every election. Are they complaining because employer consultants are better at their jobs than union consultants?
There are many implications of this rule. If passed, many employers may forgo hiring union avoidance consultants in order to avoid the reporting requirements. They may feel uneasy making such a disclosure, and may not want to reveal the identity of their attorneys and the fees they spend. But the result may be unprepared employers, making innocent mistakes because they have lost their advisors. More litigation will ensue, costs will rise for employers and unions will have one more advantage on the “level” playing field.
The DOL is accepting public comments on the proposed rule until August 22nd. If you have an opinion, now is the time to speak. The next step will be the issuance of final regulations. This proposed rule, coupled with the National Labor Relations Board’s recently proposed “quickie” elections would significantly decrease an employer’s ability to talk to their employees about unions. These rules would skew the already pro-union legal landscape even further in favor of unions. Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
