“Persuader Activity” Rule published by U.S. Department of Labor

The United States Department of Labor (DOL) has published its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA). Unless halted or delayed by litigation, government action or the next administration, the new DOL rule will attempt to convert into “persuader activity” some of what is now accepted as legal advice. Under the new DOL rule, both the employer/client and its consultant/attorney would be required to report to the DOL all arrangements in which an “object” (directly or indirectly) of the services provided by the consultant/attorney is to persuade employees about the manner of exercising the employees’ “right to organize and bargain collectively through representatives of their own choosing” under federal labor law. The DOL takes the position that the “advice exemption” still applies to an arrangement where the consultant/attorney “exclusively provides legal services.” Although scheduled to take effect 30 days after publication, which would be late April 2016, it is likely that the new rule’s implementation and legality will be challenged. The rule will be applicable to agreements, arrangements and payments made on or after July 1, 2016.