Labor Secretary Hilda Solis announced on Wednesday afternoon that she is resigning her post. By all accounts, Solis clearly stood on the side of organized labor. As Byron York notes, Solis served as a cheerleader for union members opposing Wisconsin Governor Scott Walker’s reforms, and she supported the anti-secret ballot EFCA before it went down in flames.
As the speculation begins as to who might replace Solis, she has already put in motion at least one major change that ensures yet another advantage for organized labor. The Department of Labor (DOL) is approaching the Final Rule stage of a new regulation that would change the definition of “advice” and “persuader.” The proposed rule would revise the way the DOL interprets the Labor Management Reporting Disclosure Act (LMRDA) by limiting the exemption of whom an employer must share information about.
Prior to this proposal, the DOL interpreted Section 203 of the LMRDA to mean that employers only had to reveal information about “persuaders,” those who help the company in deterring union campaigns, if those individuals were in direct contact with employees. Under this altered interpretation, employers would have to reveal the names of the lawyers or other consultants that they relied on for advice, as well as how much it cost to hire them.
This is especially problematic for attorneys, as the American Bar Association (ABA) stated in its comment in opposition to the rule. It would force attorneys to violate rules of confidentiality with their clients. According to the ABA Model Rules and several state bar rules of professional conduct, the divulging of information relating to representation of a client without the informed consent of the client is not permitted. The ABA says:
By requiring lawyers to file detailed reports with the Department stating the identity of their employer clients, the nature of the representation and the types of legal tasks performed, and the receipt and disbursement of legal fees whenever the lawyers provide advice or other legal services relating to the clients’ persuader activities, the Proposed Rule could chill and seriously undermine the confidential client-lawyer relationship.
This is but one part of the pro-labor legacy that will remain even though Solis is moving on.