Labor Attorneys, 3rd Party Persuaders, Consultants, Companies Face Disclosures.
So if you’re a company consultant, or a labor attorney, and your client receives a love note informing you that there is a petition for a union election that has just been filed; you may face a new challenge. Yipee. When presented with a union organizing drive and professional union organizers, employers are initially at a disadvantage. Many of these employers turn to labor lawyers or consultants to help them exercise their right to educate their employees about unions. That assistance may no longer be available under proposed rule changes that may “reinterpret” federal law that has been appropriately interpreted for years by the Department of Labor. I’ll just interpret that DOL is on a mission to help unions increase their power and membership.
The Labor Management Reporting and Disclosure Act (LMDRA) requires a company and its outside counsel file annual reports with the Feds if the company arranged for the lawyer to communicate directly with employees. However, for more than 40 years, there has been a recognized exception to this requirement if the lawyer is only providing legal or practical advice to company managers on how they may communicate with employees about unions. This exception has now been targeted for change by the DOL.
Under the reinterpretation, areas in which employers seeking legal advice regarding employee policies and practices or supervisory training, would be reportable if they’re designed to prevent union organizing. In reality, many policies are designed to ensure employees are treated fairly will also reduce the employer’s vulnerability to union organizing. If an attorney constructs or reviews a company’s handbook policy or a “introduction” to the company states a position against third-party representation the proposed DOL reporting requirements could be triggered. However, under federal law, such statements are subject to close scrutiny by the NLRB and must be carefully drafted to avoid an unfair labor practice.
The proposal creates a dilemma for companies that want to exercise their right to tell employees that their policies are written to create a positive work environment and make union representation unnecessary. Further, the required reporting could become burdensome and in some cases require the lawyer to violate attorney-client privilege. If the company uses an attorney who engages in reportable activity, the company will be required to file a form that itemizes financial arrangements payments to the attorney, signed under the penalty of perjury, and threatened with civil and criminal penalties as well as personal liability.
I’m pretty sure most employers will resist filing a report of this nature and so it may be easier to forego legal help on union issues. Also, the attorney filings may breach the confidentiality of clients who do not wish to publicly disclose their use of attorneys in union organizing drives or related matters. The American Bar Association has expressed serious concerns to the DOL, urging it to not impose this unjustified and intrusive burden on corporations or their counsel.
If these proposals hold and are implemented unions will find it easier to organize because companies and lawyers will be deterred from providing management training and legal advice. Is this is the result the government hopes to achieve? Does this administration know no boundaries regarding it’s blatantly demonstrated commitment to help organized labor reverse its long and steep decline of membership?