This week, the Department of Labor completed a labor favor that has been years in the making. The Department finalized and issued its “persuader rule,” a policy that requires employers to disclose indirect assistance they received in crafting a campaign to recommend that employees not unionize. (Prior precedent had required employers to report only consultants who had direct contact with employees.)
We’ve covered some of the problems with this policy before—the American Bar Association filed a comment in opposition to a draft of the proposal because it infringed on the attorney-client privilege, to choose just one. But there is at least as great a danger to employee rights as to employer (and attorney) rights from the rule.
During a union organizing campaign, professional union organizers and off-the-books “salts” (union sympathizers or professional organizers who get jobs with a company in order to start an organizing campaign) have essentially free rein to promise and dangle whatever wage and benefit increases they believe will get them votes. Because by law union promises aren’t binding, few union activities short of outright violence or threats of violence can actually get an election invalidated. Alternatively, if a company promises anything of value to sway votes, it is considered illegal.
Employers must walk a tightrope to ensure they don’t fall afoul of National Labor Relations Board rules governing what employers can and can’t say during an election. This is at least part of the reason why unionization consultants’ services are sought after: The consultants and labor lawyers generally have a reasonable idea as to what messages the NLRB will allow.
The new rule will require much of that kind of advice to be disclosed to the government, possibly leading some employers to do things that will hurt employee interests, including not engaging in election messaging at all or allowing false union promises to circulate without rebuttal. In either case, there’s plenty of opportunity for employees to end up suffering buyer’s remorse. Rather than expanding employee education, the likeliest outcome of the new rule is a substantial infringement of an employee’s right to be informed.