The Persuader Rules are Coming
Paul Revere is famous for his ride through the night and crying out — “The British are coming! The British are coming!”
Chicken Little is famous (and fictional) for running around screaming – “The sky is falling! The Sky is falling!”
For the past five years, on and off – labor relations professionals have been hearing someone write “The Persuader Rules are coming! The Persuader Rules are coming!”
It looks like that story may finally come to an end, and move into a new phase. Politico Morning Shift is reporting that the Persuader Rules that have been sitting with OMB are days away from being released.
The Labor Department proposed the persuader rule in 2011 but didn’t for some reason get around to submitting it to the OMB for review until this past December. The rule is expected to narrow – or eliminate entirely – the “advice exception” that allows consultants and lawyers to avoid disclosure provided they don’t communicate directly with employees at a given worksite. Expect a big fight on this one from the American Bar Association, which has already said it intrudes on attorney-client privilege.
We offered a webinar from Phil Wilson and Doug Seaton for CUE members last week previewing what you need to know right now to get ready for this new rule.
The Sky is Not Falling
It’s going to be complicated. It’s going to be litigated. It’s going to be a pain for employers to deal with.
It’s also important to keep things in perspective. Paul Revere was right, but Chicken Little was wrong. The sky is not falling.
These rules are NOT the end of the world as we know it. Employers are still going to work with their employees to build great workplace relationships. You will still need to train your supervisors and update your handbooks. Life goes on
It’s just a new reporting requirement that you need to prepare and plan for. All the information below this line can help you do just that.
5 tips from Phil Wilson
Here are 5 steps you should take to prepare for the final persuader rule:
- Make sure your leaders understand what is about to happen. Nobody other than us labor nerds are paying any attention to this rule. I also get the whole “chicken-little problem” of getting excited (again) about a rule that’s been getting punted for years. Just take my word for it, that’s not what it looks like now. Your top leaders won’t actually pay attention to this until it goes final, at which point they will wonder why you weren’t warning them about it. Now’s your chance to look like the genius you are. Let us know if we can help – we do briefings like this for clients all the time.
- Inventory all your potential trigger relationships. The list of potential trigger events is long, and you won’t have a lot of time to figure them out when the final rule gets announced. Give yourself a 30-day head start. Even if a few of the trigger areas change there is no harm done in doing an inventory of these different relationships. You may find some you don’t need or others you can consolidate. That’s a proactive step that is high value to your organization independent of the rule.
- Talk to your vendors about their reporting plan. Once you inventory these relationships talk to each vendor about their plan for reporting. Have they ever reported before? Do they plan to report? If not, do you agree that they shouldn’t (I would carefully question someone who says this rule doesn’t apply to them). Do they plan to continue providing the service if they come under the rule? You really don’t want to get blindsided by having a key vendor who had been helping you for years suddenly decide they are getting out of any reportable activity.
- Figure out your own reporting plan. Who is going to be in charge of monitoring these reporting requirements? How will you know whether one has triggered (for example, if someone attends a labor relations seminar how will you know)? What is your reporting system for the 30-day and year end reports? How is that going to be coordinated with your vendors?
- Keep up to date. You are already well on your way by subscribing to our newsletter. We will send out a breaking news when this hits and will do a webinar a few days later explaining any differences between the proposed rule and the final version. Make sure to stay alert for those announcements.
Access to Information on the DOL Persuader Rule
If you need a copy of the Persuader Rules proposed by DOL in 2011, you can access them here. Labor-Management Reporting and Disclosure Act: Interpretation of the Advice Exemption.
You can access copies of the slide deck and the audio from the webinar by logging into the CUE member portal and going here.
If you are not a CUE member but would like more information on the persuader rule, email Michael at email@example.com.