April 29, 2016
At a House hearing this week, American Bar Association President Paulette Brown told Congress the Labor Department's final persuader rule "will seriously undermine both the confidential lawyer-client relationship and the employers' fundamental right to effective counsel." In a statement submitted to the House Subcommittee on Health, Employment, Labor, and Pensions, Ms. Brown said law firms that provide advice "could be compelled to disclose an excessive amount of confidential client information to the government if and when the Department decides to begin enforcing compliance." Subcommittee Chairman Phil Roe (R-TN) said that under the new rule employers will "face onerous, costly, and invasive new requirements that will force them to report virtually all contact with advisors and undermine their ability to communicate with workers during union organizing campaigns." However, Ranking Democrat Jared Polis (D-CO) argued the rule is needed to help "level the playing field" in organizing and collective bargaining, and that "employees should be able to know who is behind the propaganda given to them during union organizing efforts." The final rule significantly expands the reporting requirements for employers, law firms, and consultants when they engage in agreements that involve indirect persuader activities aimed at union avoidance. The final rule applies to employer-consultant agreements and arrangements beginning July 1, 2016, and has already drawn three separate court challenges.