DOL mulls return to Obama-era 'persuader' reporting rule

In late April 2021, the U.S. Department of Labor's (DOL) Office of Labor-Management Standards (OLMS) signaled its intent to revisit the "persuader rule," an Obama-era regulation that imposed strict reporting requirements on employers facing union organization. Although the rule hasn't yet been reinstated and will almost certainly face significant opposition, you should be aware of the possible ramifications.

What is the persuader rule?

The persuader rule is a regulation first established by the DOL during the Obama administration. It alters the agency's interpretation of the Labor Management Reporting and Disclosure Act of 1959, which requires employers and their labor consultants to report any activities "undertaken with an object, directly or indirectly, to persuade employees about how to exercise their rights to union representation and collective bargaining."

Since the Act's inception, it has been interpreted as exempting "advice" from the reporting requirements. As long as labor consultants didn't have direct contact with employees, their guidance was considered "advice" and not subject to the reporting requirements.

The persuader rule eliminates the "advice" exception, meaning employers would have to report any assistance rendered by labor consultants, including attorneys, that is "undertaken with an object, directly or indirectly, to persuade employees about how to exercise their rights to union representation and collective bargaining."