GAG RULE The DOL Attack on Employer Free Speech

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GAG RULEThe DOL Attack on Employer Free Speech
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Agreement to Provide Labor Relations Services?
No Report Required
Agreement covers direct communication to
non-supervisory employees?
No
Yes
Yes
Is the indirect communication intended to
persuade?
Yes
Labor Management Reporting and Disclosure Act of
1959
Yes
Is the persuasive communication covered by the
advice exception?
Report Required
No
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Agreement and Activities Report Form LM-20 Due
30 days after the Agreement to provide
persuader services
Receipts and Disbursements Report Form
LM-21 Due 90 days from the end of your fiscal year
Labor Management Reporting and Disclosure Act of
1959
Employer Report - Form LM-10 Due 90 days from the
end of your fiscal year
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1960 Interpretation Speeches, written materials
persuader activity

• Advice exemption Section 203(c) of LMRDA
• Applies to consultants and attorneys
• Exempts advice from disclosure rules

1962 Re-Interpretation Speeches, written
materials advice activity
2001 Re-interpretation Speeches, written
materials persuader activity unless that
activity is mere review and revision
2011 Re-interpretation?
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• Persuader activities include drafting, revising
  or providing
• Materials for presentation, dissemination,
  distribution to employees
• Speeches
• Audiovisual, multimedia presentation
• Website content
• Planning, conducting one-on-one or group meetings
• Employee attitude surveys concerning union
  awareness, sympathy or proneness
• Training supervisors to conduct meetings
• Coordination or directing activities of
  supervisors
• Establishing or facilitating employee committees
• Developing personnel policies
• Deciding which employees to target for persuader
  activity or disciplinary action
• Conducting a seminar for supervisors
• Other (must explain)

June 21, 2011 Notice of Proposed Rulemaking The
New Rules (proposed)

• Proposed Rulemaking
• Not a final rule
• 60 days to comment
• In effect after comment period
• Comment by web (regulations.gov), hand-delivery
  or by mail
• Reference 1215-AB79 and 1245-AA03 (29 C.F.R.
  Parts 405 and 406)

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Seminars and Conferences If persuader materials
are offered then DOL says reporting is triggered
(See NPRM at 63-64)
Employee Surveys Developing or conducting surveys
concerning union awareness can trigger reporting
(See NPRM at 69)
Surprising Changes
Employee Committees Establishing or facilitating
employee committee can trigger the requirement
almost no explanation (See NPRM 142, 155)
Deciding Who to Target? Apparent attempt to go
after straw polling and discriminatory
terminations back door attempt to criminalize
unfair labor practices?
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Privileged Communications Must disclose
agreement, fees, and persuader activity but dont
have to disclose privileged communication (See
NPRM at 65)
Mixed Activities Persuader activity trumps
advice must disclose even is some activity would
be exempt if done alone (See NPRM at 64-65)

• Common Questions
• Attorney-client privilege?
• Mixed persuader-advice situations?
• What fees must be reported?

Fees Based on the agreement or arrangement and
NPRM says must report fees for BOTH advice and
persuasion in any agreement that includes
persuasion (See NPRM at 65, n. 16)
Check Your Circuit Some Circuits (4th, 5th, 6th
and 7th) require firms to report advice
activities for clients who did not even receive
persuader activity during the reporting year.
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• Action Item 1 Comment
• Go to regulations.gov and comment (link on our
  site)
• Key topics for comment
• No need for the rule the cited authority is
  one-sided and speculative
• Far over-reaching (employee surveys, employee
  committees, termination decisions)
• Unfair exact same activity is persuasion in
  some cases, not others
• Burdensome on small (and large) businesses
  virtually every consultant and attorney
  conversation potentially subject to disclosure
• Demonizes and discourages legitimate and
  protected employer speech

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• Action Item 2 Congress
• Newly elected Congress Republican majority
• House has appropriations power
• Can de-fund regulatory activities (i.e.
  ergonomics)
• NLRB already under pressure due to Boeing case
• Key people to contact
• Your congressperson
• Members of the House Appropriations and Education
  and the Workforce Subcommittees

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• Action Item 3 Proactive ER
• Just the beginning (short elections, micro-units,
  temps, supervisors, witnesses...)
• Key leverage point direct relationship
• Left of boom ER practices

Right of BOOM
BOOM
Left of BOOM
Counter-Campaign
Strategy
Alert Legal, Consulting, Jump Team
Tripwire Team
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Never Be Intimidated from Doing Right
The Argument from Intimidation is a confession of
intellectual impotence How does one resist that
Argument? There is only one weapon against it
moral certainty. When one enters any
intellectual battle, big or small, public or
private, one cannot seek, desire or expect the
enemy's sanction. Truth or falsehood must be
one's sole concern and sole criterion of
judgmentnot anyone's approval or disapproval
and, above all, not the approval of those whose
standards are the opposite of one's own.
Ayn Rand, The Virtue of Selfishness 1964