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Left Turns

The Administration’s Persuader Ploy

For seven years, the Obama administration has pursued a concerted effort to advance the interests of union bosses at the expense of hardworking Americans. The latest ploy in this Big Labor agenda? A rule from the Department of Labor (DOL) that will undermine the rights of both workers and employers when it comes to union elections.
This regulatory scheme—known as the “persuader rule”—imposes onerous, costly, and invasive new requirements on employers, forcing them to report virtually all contact with advisors on union-related issues. This is a dramatic departure from long-standing labor policies that will deter employers—particularly small business owners—from seeking help when trying to navigate a host of complex labor rules. As a result, the department's action will:
  • Restrict employers’ free speech by undermining their ability to communicate with employees during union organizing campaigns.
  • Stifle workers’ free choice by depriving them of the information they need to decide whether joining a union is best for them and their families.
  • Make it harder for small business owners to obtain advice when navigating the legal complexities of rules governing labor relations.

For nearly five years, concerns were raised about the rule’s troubling consequences. After it was first proposed, critics said:

  • The Department of Labor is pushing a rule that would make it much more difficult for small business owners to get good legal advice when they have to deal with union organizing. (National Federation of Independent Business)
  • The department’s proposed rule could also seriously undermine both the confidential client-lawyer relationship and the employers’ fundamental right to counsel. (American Bar Association)
  • By compromising companies’ ability to seek advice on compliance with federal labor law, the proposed rule would jeopardize firms’ as well as workers’ statutory rights. (Former Department of Labor Chief Economist Diana Furchtgott-Roth)
  • As proposed, we believe this new rule would undermine long-standing protections for confidential attorney-client communications and would place undue burdens on small businesses within our states. (Coalition of 13 State Attorneys General)

Now that the rule is final, those concerns persist:

  • [The rule] particularly targets America’s small business ownersinterfering with their right to confidential legal advice and other counsel. It will also make it harder for them to lawfully communicate with employees about unions and other workforce issues … The rule goes way beyond the original intent of the law, and not only will unfairly target American companies, but also it will diminish protections for their employees. (Coalition for a Democratic Workplace)
  • Once again, the Obama administration is bowing to labor unions and eliminating a well-established, clear test in favor of an ambiguous and open-ended standard that will lead to confusion for America’s employers … Small retailers will be the first to suffer, and Big Labor will profit from this muzzling of free speech. (National Retail Federation)
  • The DOL’s just-released “persuader rule” is an unprecedented intrusion into the attorney-client relationship. While technical in nature, the purpose will be to restrict the ability of employers, especially small employers, to obtain the kind of confidential information they need to respond to our ever-changing labor laws. (Littler Workplace Policy Institute)
  • The DOL must have created this rule with the real intent of assisting organized labor because they are the only ones who stand to gain anything from this, certainly not American small businesses who will undoubtedly be hit the hardest. (International Franchise Association)

What the rule does not do is impose the same harmful and costly requirements on unions. While employers and their advisors are subject to a whole host of additional disclosure requirements, unions and their advisors are exempt.
For an administration so focused on being “fair,” their actions are anything but. Instead, the president and his Democratic allies seem more concerned with giving “organized labor a boost”—just like they’ve done so many times before.
As committee leaders recently explained:

By protecting unions from these onerous and invasive reporting requirements, the administration has made it clear they’re not interested in fair or democratic union elections. They’re interested in tilting the balance of power toward union interests—no matter the costs … We intend to push back against this rule and do what’s necessary to protect the rights of workers and employers.

And no amount of rhetoric from the administration will persuade the committee otherwise.

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