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Kline, Roe Call on Administration to Withdraw Regulation that Harms Employer Free Speech
Request documents and communications on proposed rule

House Education and the Workforce Committee Chairman John Kline (R-MN) and Subcommittee on Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) issued the following joint statement after renewing their request for the Department of Labor to abandon its proposed changes to the longstanding “advice exemption” under the Labor-Management Reporting and Disclosure Act:

Workers have a right to hear from their employers on important issues surrounding union representation. Yet the Obama administration is engaged in a campaign to silence employers on union matters. A part of that effort is the Labor Department’s attempt to rewrite the long-standing advice exemption. Federal labor law is extremely complicated, and this flawed rule will have a chilling effect on employers who need legal advice before communicating with their employees. Meanwhile, the president’s labor board is committed to an ambush election scheme that will further stifle employer free speech. Both efforts will undermine the ability of workers to make informed decisions about union representation and should be withdrawn.

The Labor-Management Reporting and Disclosure Act of 1959 requires employers and legal consultants to report any arrangement to directly or indirectly persuade employees regarding the right to organize or bargain collectively. For 50 years, an “advice exemption” has waived this reporting requirement if the consultant has no direct contact with employees and the employer is free to accept or reject the consultant’s guidance. Employers have a right to communicate with their employees about union representation, and rely upon legal advice to ensure their views are communicated in a lawful way.

In June 2011 the Department of Labor issued a proposed regulation that would significantly narrow the advice exemption. Under the department’s proposal, the exemption would only apply to recommendations provided orally or in writing. The proposal does not clearly specify what will constitute a recommendation, thereby creating legal confusion for employers. The proposal also undermines the confidential attorney-client relationship, a concern echoed by the American Bar Association:

… the Proposed Rule could chill and seriously undermine the confidential client-lawyer relationship. In addition, by imposing these unfair reporting burdens on both the lawyers and the employer clients they represent, the Proposed Rule could very well discourage many employers from seeking the expert legal representation that they need, thereby effectively denying them their fundamental right to counsel. (Wm. T. (Bill) Robinson III, President, American Bar Association, Letter to the U.S. Department of Labor, 09/21/11)

In their letter, Reps. Kline and Roe urge the department to withdraw the rule and deliver all documents and communications related to its development:

We continue to oppose the proposed changes to the LMRDA definition of “advice” and encourage the department to withdraw this rulemaking. If you choose not to withdraw the rule, to ensure the final rule protects the confidential client-lawyer relationship and has undergone a thorough burden analysis, we request that you provide all documents and communications relating to the proposed and final rules’ burden analysis no later than June 12, 2013.

To read the letter, click here.

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