OMA Connections Partner, Frantz Ward, provides this analysis of the Department of Labor’s recently released revisions to the rules for reporting employer engagements with third parties to provide services designed to influence employees’ choices of collective bargaining representation, known as “persuader activity.”
Franz Ward writes: “The logical and logistical problems with the new rule are substantial. As drafted, it raises freedom of speech issues that the prior interpretation (in effect since 1962) avoided. The forms have been revised to require electronic filing under a “check the box” format that may not reflect reality or the nuances of what actually occurred. The distinction between advising an employer to make a particular argument and engaging in persuader activity by describing the argument to the employer is impossible to draw. Since the forms must be filed correctly under penalty of a felony violation, the consequences of such new vagueness are frightening, especially for the CEO’s and Treasurers who must sign the reports.
“Meanwhile, starting July 1 (unless the rule is enjoined), employers and their labor relations advisors will need to review their arrangements carefully to ensure that there is no persuader activity or, if there is, that reports are timely made.”