DOL Persuader Rule May Require Reporting of Employee Engagement Surveys

February 19, 2016

A new HR Policy CHRO Guide explains that under the Labor Department's proposed "persuader" rule, which is expected to be finalized in March, employers may have to publicly report any agreement they have with a consultant to develop or conduct employee engagement surveys that may indirectly reference union awareness, sympathy, or proneness.  The final rule, currently being reviewed at the Office of Management and Budget, has not yet been made publicly available.  However, examples of persuader activities that could trigger the new reporting requirement that were in the proposal include agreements with consultants to:

  • Draft, revise, or provide website content for employees, or written materials for presentation, dissemination, or distribution to employees;
  • Train supervisors or employer representatives to conduct individual or group employee meetings; and/or
  • Develop personnel policies or practices.
The lack of any definition or specific examples in the proposed rules of what constitutes "indirect" persuader activities could broaden the reporting requirement to include virtually every form of advice, counsel, and assistance in the personnel and employee relations field.  This is particularly problematic given the lack of any explicit nexus for the reporting requirement, such as a union organizing campaign, and the potential criminal penalties for noncompliance.  Separately, 13 state attorneys general recently sent a letter to OMB opposing the Labor Department's persuader rule because it would "undermine long-standing protections for confidential attorney-client communications and would place undue burdens on small business which would be singled out under the rule."