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DOL Issues Final "Persuader" Rules Governing Disclosure of Consultants in Antiunion Efforts

    Client Alerts
  • March 30, 2016

On Wednesday, the federal Department of Labor issued final regulations requiring for the first time that employers disclose the identity of any third-party consultants retained to help the company respond to union organizing efforts. These “persuader” rules were issued in proposed form by DOL in 2011. The rules expand existing law by requiring such disclosures whether or not the consultants ever directly interact with their clients’ employees. The rules would apply to legal counsel retained for the purpose of helping the employer craft its message, in addition to non-legal consultants.

DOL justified the new requirement on the basis of transparency. If the employer is not developing its own arguments against unionized status, DOL stated that employees should know the source of the arguments. Unions are required to disclose their organizing expenditures, but not to the extent required of employers under the new rules.

Employers view these regulations as the most recent in a string of rules intended to tilt the balance in representation elections toward organized labor, in this case by implying that the use of outside assistance indicates that the company’s position is somehow disingenuous. The rules are slated to apply to expenditures for consultants made on or after July 1, 2016. However, they are certain to generate lawsuits by employers contending that DOL exceeded its statutory authority, and that the regulations violate their First Amendment rights. These suits could result in a delay or eventual judicial rejection of the disclosure requirements.