The U.S. Department of Labor proposes a rule change, concerning the disclosures required of consulting or law firms who advise management regarding union organization. Many of these firms, and the ABA, say the new rules will impermissibly intrude on the attorney-client relationship, and particularly chill the relationships between small-business owners and their attorneys.
The 1959 Labor-Management Reporting and Disclosure Actor relations consultants to employers to file extensive disclosures with the DOL, if their purpose was to persuade employees not to exercise their right to unionize or engage in collective bargaining. Id., Sec. 203. The law provided an exception for those consultants who instead only advised management, rather than seeking to persuade employees. This exception was expanded in 1962 by DOL rule, which extended the exemption to consultants or lawyers who assist management in opposing unionization efforts, such as preparing materials, provided they do not have any direct contact with the employees.
The DOL now proposes a new rule change that would require reporting of both direct and indirect 'persuader activities.' AFL-CIO and other labor groups are in favor of the proposed rule, but the ABA President William T. Robinson says it would "essentially nullify the advice exemption contained in the statute," and would be inconsistent with confidentiality obligations by requiring lawyers to "report all receipts from and disbursements on behalf of every employer client for whom the lawyers performed any 'labor relations advice or services,' not just those employer clients for whom persuader activities were performed." See Richard Acello, "Unpersuaded," ABA Journal, Dec. 2011 (quotations from Mr. Robinson; emphasis in original).
As always, it's difficult to parse out the competing interests and claims on an issue like this. I hope, however, that the DOL does carefully weigh both sides before issuing any new rules.
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