Department Of Labor Resets Persuader Rules Deadline For March 2014

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In June 2011, the U.S. Department of Labor (DOL) proposed new regulations that would significantly narrow the DOL’s interpretation of the Labor-Management Reporting and Disclosure Act (LMRDA) that has been in force since 1962. Dubbed the “persuader rules,” the regulations address Section 203 of the LMRDA, which, among other things, requires employers to file reports with the DOL when they hire consultants or contractors (including attorneys) to persuade employees on the issue of unions.  As we reported back in July, the Obama administration slipped a November release date for the final rule onto its Unified Agenda of upcoming regulatory and deregulatory actions.

November 2013 passed with no official news, other than a few comments by Department of Labor officials that the rules would be delayed yet again.  The Obama administration used another holiday weekend, Thanksgiving, to release a new timetable calling for publication of the final rule in March 2014.

The DOL’s new report does not indicate that it has sent a final draft of the rules to the Office of Information and Regulatory Affairs for final review, approval, and publication. The period for the Office to review a draft regulation is limited by an Executive Order to 90 days, with the possibility of a single, 30-day extension. While there is no minimum period for review, the average review time in past years has been approximately two months. Therefore, the DOL would likely need to submit the rules for publication sometime between now and the end of January 2014 if it plans to have a final rule in place before the end of March 2014.

We covered the oft-delayed persuader rules in greater detail in January 2013.  The new standards would drastically increase the reporting requirements for employers and attorneys/consultants/contractors and could substantially interfere with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union activity, and have a chilling effect on employer free speech during such campaigns.

We will continue to monitor the DOL’s action on the persuader rules closely and report on any further developments.