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March 28, 2016

MSCI, Allies Will Fight DOL’s Newly-Issued Persuader Rule

The U.S. Department of Labor (DOL) last week released its final “persuader” rule, which requires added disclosures from employers and management consultants about their activities regarding labor union organization. Specifically, according to IndustryWeek, the rule requires that employers report “actions, conduct or communications that are undertaken with an objective, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights.” 

Organized labor organizations have been pushing for the new persuader rule for some time. 

Under the Department of Labor’s old rules, only those entities who had direct contact with employees regarding labor organizing campaigns had to disclose their activity to DOL. Under the new rule, however, even those consultants who have no face-to-face contact with employees and are educating employers on rights to organize and bargain collectively will have to report to DOL as persuaders. The only exception to the new definition is if an entity or consultant is only giving advice to the employer (this would include lawyers). Additionally, trade associations will be excluded from disclosure if they do not conduct seminars or provide materials to member companies themselves. 

MSCI and its partners have argued this rule would violate employers’ free speech rights. As such, and as Connecting the Dots noted last week, MSCI will fight this rule as part of the Coalition for A Democratic Workplace. The coalition has posted resources, including a fact sheet, short slide show explaining the persuader rule and links to various letters sent by state attorneys general, about the rule on its new website and its persuader page. The site also has CDW’s comments on the rule, a December 2015 letter CDW members sent to the Office of Management and Budget and letters CDW sent to appropriators through out the years on this and other issues. 

According to Reuters, the American Bar Association also believes the rule will interfere with attorney-client privilege. 

More than 70 members of Congress wrote a letter last week opposing this rule. The lawmakers asked members of the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies to address this rule, and other controversial DOL and National Labor Relations Board rulings, including the ambush elections rule, through the fiscal year 2017 spending process. The lawmakers argued failure to do so would ensure “economic uncertainty will continue to afflict millions of American employers, workers and consumers.” The lawmakers’ letter and the DOL’s final persuader rule are available here