They’re finally here: the DOL’s new persuader rules have been published in the Federal Register and – at first glance – they look pretty bad. The DOL watered down their proposed rules just a lil’ bit, and even provided a small set of different rules to allow trade associations to engage in certain activity without triggering any reporting requirements, but overall the rules will be a game-changer for most employers.
I’m currently going through the rules with a fine tooth comb (the rules are either 129 or 446 pages long, depending on whether you read the version with small print or the one with a larger font and double spacing). In a nutshell, the new persuader rule will no longer accept the “accept or reject” test for the “advice” exception. As a result, persuaders and employers will be required to file a report for “indirect” persuader activities, which could include the following:
- Planning, directing, or coordinating supervisors or managers;
- Providing persuader materials;
- Conducting seminars; and
- Developing or implementing personnel policies or actions.
It appears trade associations are exempt from the reporting requirements if they (1) host a counter-organizing seminar but bring in outside speakers or (2) simply provide “off the shelf” materials to an employer for a union campaign. To get a firmer grasp on how these new rules will affect organizations like the Hawaii Employers Council (“HEC”), however, I need to read through the rules and examine them in more detail.
For anybody who wants to read up on the rules, you can view the following:
- DOL webpage on new persuader rule;
- New persuader rule (129 page version);
- New persuader rule (446 page version);
- DOL summary of new persuader rule;
- DOL press release for new persuader rule; and
- DOL Q&A on new persuader rule.
In addition, HEC will be providing a seminar on May 11, 2016 that will provide an overview of the new rules, a discussion of how the new rule will impact employers, instructions on how to fill out the LM-10 form for employers, and a review of some of the legal challenges that have arisen against these new rules. That seminar will be available to HEC members only, and on a first-come-first-served basis.
Finally, once I have a chance to read through all the rules, I’ll prepare and send out an article summarizing the new rule – which will also be available only to HEC members.