The Department of Labor has proposed changes to, and seeks public comment regarding its interpretation of, the persuader reporting requirements set forth in Section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 currently requires employers to disclose arrangements with any third-party to directly or indirectly persuade their employees as to their collective bargaining rights,or to obtain information about the activities of a labor organization involved in a labor dispute with the employer.

There has always been an exception to this reporting requirement for any "advice" given to the employer. In the past, this exception has excluded arrangements where the third-party does not have any direct contact with employees, such as drafting or reviewing documents, letters, or speeches presented to employees during an organizing drive or in anticipation of an NLRB election. These activities were deemed "advice," therefore, there was no need to disclose.

Should the Department of Labor's proposal become effective, the term "advice" will be limited to "oral or written recommendations regarding a decision or course of conduct," outside of representing the employer in a court, administrative, or arbitration proceeding. The term "persuader activity" would include training or directing supervisors and other management representatives to engage in persuader activity; establishing antiunion committees composed of employees; planning employee meetings; deciding which employees to target for persuader activity or discipline; creating employer policies and practices designed to prevent organizing; and determining the timing and sequencing of persuader tactics and strategies. In these instances, the Department of Labor believes the third-party has gone beyond mere recommendation and has engaged in actions, conduct, or communications with the object to persuade employees, either directly or indirectly, about the employees' protected, concerted activity. As such, the duty to report will be triggered.

The full text of the proposed interpretation can be found in the Federal Register. Electronic comments may be submitted here. Comments must be received by August 22, 2011.

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