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DoL "advice" change will restrict access to legal counsel and support a union agenda

A proposed revision of the “advice” exemption of the Labor-Management Reporting and Disclosure Act (LMRDA) of 1959 will restrict access to legal counsel and forwards an organized labor agenda, opponents say.

The Department of Labor’s Office of Labor-Management Standards proposes to revise its interpretation of the ‘‘advice’’ exemption of LMRDA by limiting the definition of what activities constitute advice, which, in turn, expands those circumstances under which reporting is required of employer-consultant persuader agreements.

Section 203 of LRMDA requires employers to report to the government any arrangement with a labor relations consultant in which the “consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively.” The consultant must also report such arrangements to the government.

“We now believe that the Department’s current interpretation of the advice exemption may be overbroad, and could sweep within it agreements and arrangements between employers and labor consultants that involve certain persuader activity that Congress intended to be reported under the LMRDA,” the DoL explained in its proposed change notice.

The DoL said that there is “evidence (suggesting) that consultants, in order to avoid reporting under the LMRDA, engage predominantly in indirect persuader activity by directing their activities to the employer’s supervisors. The clarification of the distinction between advice and persuader activity is intended to correct this problem, and will result in better information for employees when making decisions about representation.”

“We’re opposed to this rule because it basically takes away an employer’s right to advice regarding a campaign, and how they can communicate with their employees to present their guaranteed right to free speech about unions,” said Paul Williams, senior director, government relations, Assisted Living Federation of America (ALFA), a national advocacy group for operators of senior living communities and their clients.

“Under the interpretation that they’re proposing it would make virtually any consultation with a labor lawyer during a union campaign as pretty much persuader activity and they would have to be disclosed,” he said. “The result of that is going to be there’s going to be very few law firms that are going to be out there willing to give advice to businesses, be it ours or small business, any business.”

“I think it’s going to cause many law firms to re-analyze whether they want to be involved in the kind of work that employers need legal advice on when they have union organizing campaigns,” agreed Charles Caulkins, managing partner, Fort Lauderdale office, Fisher & Phillips, a national law firm representing management in labor and employment law matters.

Caulkins said lawyers may find the additional paperwork burdensome and the possibility of criminal sanctions if information is inaccurate off-putting. Additionally, lawyers are reluctant to have to report who their clients are and what fees they’ve charged those clients, which they would have to do under the proposed changes.

“There’s been no information that I’ve seen that calls for this kind of expansive change in the regulations. There’s no problem here,” Caulkins said.

The real force driving this change is organized labor, said Caulkins and Williams.

[See also: Controversy sparks over possible changes to unions at long-term care facilities .]

They say this proposed change is a strategy by organized labor and those in the Obama administration who back organized labor to get parts of the failed Employee Free Choice Act legalized.

“Behind the scenes, what’s going here is trying to reward this constituency of the Obama administration with rulemaking which they can’t get accomplished in Congress,” said Caulkins.

“They couldn’t get the Employee Free Choice Act to pass during the last few congresses,” Williams said. “The new tactic the administration is orchestrating is through the (National Labor Relations Board) and through the Department of Labor. They are taking provisions of the Employee Free Choice Act and are attempting to enforce them through federal regulation."

"In this case, they’ve taken the persuader activity proposed rule to limit advice, which is one piece of the Employee Free Choice Act. You’ve got ‘quickie’ elections (recently proposed rulemaking to reduce the time for union representation elections), which the NLRB is doing, which is another facet of the Employee Free Choice Act. It’s just basically taking that agenda, the Employee Free Choice Act, and what the unions want to significantly raise flagging memberships among their ranks,” said Williams.

The DoL denies any connection between its proposed changes and advancing an organized labor agenda. “The proposed rule is not related to the Employee Free Choice Act or any other proposed legislation,” said Jason Surbey, a spokesperson for the DoL’s Office of Public Affairs. “Rather, the proposed rule represents the Department of Labor’s ongoing effort to effectively administer the disclosure requirements of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA).”

The DoL will be accepting comments on the proposed changes through Aug. 22.

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