Department of Labor persuader rule would make it difficult to consult lawyer when facing union organizing
Washington, DC (March 23, 2016) – Small business owners could be deprived of the right to consult a lawyer
during a union organizing election under the Department of Labor’s newly
announced “persuader” rule. The new rule changes standards that have held for
decades and would place a small business owner at a severe disadvantage should
a union attempt to organize their workers.
“The Department of Labor, at the bidding of
union allies, is attempting to deprive business owners of legal advice during a
time when they need it the most,” said
Beth Milito, Senior Legal Counsel at the National Federation of Independent
Business Small Business Legal Center. “Labor law is extraordinarily complex
and a small business owner could easily find themselves in hot water if they
don’t understand the rules governing union elections. The new persuader rule is
a perverse attempt to tilt the playing field in favor of unions.”
The persuader rule has previously governed only
individuals who directly communicate with workers. A persuader is required to
file wide-ranging disclosures with the DOL. Under the new rule, for the first
time, merely providing legal advice about how to communicate with employees would
cause a lawyer to fall under the persuader rule.
“The new persuader rule would place attorneys
in a Catch-22,” said Milito. “The Department of Labor would require an attorney
labeled as a persuader to disclose their other clients, which is a breach of
confidentiality. They have to realize that this would make it virtually
impossible for most lawyers to offer advice to business owners.”
Under the new rule, the Small Business Legal
Center could also be caught up. NFIB members could lose access to guides on
negotiating the organizing process currently available online. In order to
continue offering such advice, the new rule would likely require an
organization such as NFIB to provide its entire membership to DOL, an untenable
and impossible request.
The NFIB Small Business Legal Center is
currently investigating a legal challenge to the revised persuader rule.