Employers are also covered by the LMRDA and must report actions taken in defense of a union organizing campaign. Law firms and consultants, hired by the employer, who meet directly with employees to influence their decision to join a union, are required to report this activity to DOL under section 203(b) of the LMRDA. This is called “persuader activity.” It is generalized defined as: If an employee hears it, reads it or sees it, it has to be reported.
Some advice is not considered “persuader activity” and is not required to be reported. Section 203(c) of the LMRDA exempts advice given solely to the employer. Under the “advice exception,” a consultant does not need file a report with DOL if he has no direct contact with employees and only provides the employer (or supervisors) advice or materials for use in persuading employees, which the employer may accept or reject.
The proposed regulation would expand the disclosure requirement to “indirect communication,” which includes anyone who communicates with the company regardless of whether or not they speak to workers.
This could include law firms (which could jeopardize attorney client privilege), and even polling companies that conduct employee satisfaction surveys. It could also even include training programs that teach supervisors to treat their employees well. Non-compliance could result in criminal penalties.
Both the NLRB and DOL rules may skew the playing field to favor unionization and could decrease employers’ ability to effectively communicate with their employees.