Retailers Endorse House Bill to Block DOL Persuader Rule

The U.S. Department of Labor (DOL) has once again issued another regulation that is a solution in search of a problem, noted the Retail Industry Leaders Association (RILA). The new “persuader rule,” which effectively eliminates the “advice exception” under the Labor-Management Reporting Disclosure Act (LMRDA),  imposes complicated and burdensome requirements on employers that will drain precious resources away from the important goals of job creation and economic growth. Consequently, RILA endorsed legislation to block this heavy-handed rule from going into effect. 

Historically, under the LMRDA, employers have only been required to report to DOL the engagement of consultants during an organizing campaign if the consultants directly communicate with employees. Consultants who simply provided managers with advice on how to properly communicate with their employees did not trigger such reporting. The persuader rule, however, extends the obligation to report the use of consultants even if the consultant has no direct contact with employees and the employer is free to accept or reject its recommendations. 

H.J. Res. 87, seeks to use the authority under the Congressional Review Act to block the persuader rule from going into effect. In a letter to the sponsor of the legislation, Congressman Bradley Byrne (R-AL), RILA’s Vice President for Government Affairs, Kelly Kolb, said “As written, this new interpretation not only infringes upon and erodes attorney-client privilege, but also discourages employers from seeking counsel in a broad swath of areas that do not typically concern traditional persuader activities, thus putting employers at risk for inadvertent unfair labor practices.” 

“This unnecessary and overly broad expansion of what constitutes “persuasion” will also impede the rights of employees. By denying the right to counsel, the safest course will be for employers to deny their employees information crucial to making informed decisions with respect to union representation,” added Kolb. 

The House Education and the Workforce will conduct a hearing at 10:00am ET today on the persuader rule.  

Full letter below.  

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RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad. 

April 26, 2016 
The Honorable Bradley Byrne 
U.S. House of Representatives 
119 Cannon House Office Building 
Washington, DC 20515 
 
Dear Congressman Byrne: 
 
On behalf of the Retail Industry Leaders Association (RILA), I write to offer our support for H.J. Res. 87, 
which, under the authority of the Congressional Review Act, blocks the final “persuader rule” issued by the Department of Labor (DOL) from taking effect. RILA is deeply concerned with the Department’s continuous and excessive attempts to regulate the business community at the expense of the workforce, job creation, and the economy at large. 

RILA is the trade association of the world’s largest and most innovative retail companies that promotes 
consumer choice and economic freedom through public policy and industry operational excellence. Its 
members include more than 200 retailers, product manufacturers and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and operate more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad. 
 
DOL’s final persuader rule overturns a five-decade old precedent regarding the statutory “advice” exemption, which will now subject employers to extensive disclosure requirements for merely seeking labor-related advice. As written, this new interpretation not only infringes upon and erodes attorney-client privilege, but also discourages employers from seeking counsel in a broad swath of areas that do not typically concern traditional persuader activities, thus putting employers at risk for inadvertent unfair labor practices. 

This unnecessary and overly broad expansion of what constitutes “persuasion” will also impede the rights of employees. By denying the right to counsel, the safest course will be for employers to deny their employees information crucial to making informed decisions with respect to union representation. Examples of this information includes the legal effect of signing a union card, how the election process works, and answering questions about current benefits or other promises made by union representatives.  

This notion completely undermines the more general principles guiding the National Labor Relations Act (NLRA) and the Labor Management Reporting and Disclosure Act (LMRDA) that are designed to ensure that government does not tilt the scales in favor of or in opposition to unionizing. 
 
RILA believes that DOL’s final persuader rule is yet another example of regulatory overreach committed by the Administration. Absent Congressional action, the implementation of DOL’s final persuader rule will increase economic uncertainty that will have negative ramifications for the retail industry, the employees in our stores and distribution centers, and the tens of millions of consumers we serve. RILA is prepared to work further with you as H.R. Res. 87 advances through the legislative process. Thank you for your leadership and continued dedication to this important matter. 

Sincerely,