GAG RULEThe DOL Attack on Employer Free Speech

No Report Required

Is the persuasive communication covered by

the “advice” exception?Report Required

Is the indirect communication intended to

persuade?

Agreement covers direct communication to non-supervisory employees?

Agreement to Provide Labor

Relations Services?

No Yes

Yes

Yes

No

YesLabor Management Reporting and Disclosure Act of 1959

Agreement and Activities Report – Form LM-20

Due 30 days after the Agreement to provide “persuader” services

Receipts and Disbursements Report – Form LM-21

Due 90 days from the end of your fiscal year

Employer Report - Form LM-10

Due 90 days from the end of your fiscal year

Labor Management Reporting and Disclosure Act of 1959

1960 InterpretationSpeeches, written materials =

“persuader” activity

1962 Re-InterpretationSpeeches, written materials =

“advice” activity

2001 Re-interpretationSpeeches, written materials =

“persuader” activity unless that activity is mere review and revision

2011 Re-interpretation?

“Advice” exemption – Section 203(c) of LMRDA

•Applies to consultants and attorneys•Exempts “advice” from disclosure rules

June 21, 2011 Notice of Proposed Rulemaking:

The New Rules (proposed)

Persuader activities include drafting, revising or providing:

1.Materials for presentation, dissemination, distribution to employees2.Speeches3.Audiovisual, multimedia presentation4.Website content5.Planning, conducting one-on-one or group meetings6.Employee attitude surveys concerning union awareness, sympathy or “proneness”7.Training supervisors to conduct meetings8.Coordination or directing activities of supervisors9.Establishing or facilitating employee committees10.Developing personnel policies11.Deciding which employees to target for persuader activity or disciplinary action12.Conducting a seminar for supervisors13.Other (must explain)

Proposed Rulemaking•Not a final rule•60 days to comment•In effect after comment period•Comment by web (regulations.gov), hand-delivery or by mail•Reference 1215-AB79 and 1245-AA03 (29 C.F.R. Parts 405 and 406)

Seminars and ConferencesIf persuader materials are offered then DOL

says reporting is triggered (See NPRM at 63-64)

Employee SurveysDeveloping or conducting surveys concerning

union awareness can trigger reporting (See NPRM at 69)

Employee CommitteesEstablishing or facilitating employee

committee can trigger the requirement – almost no explanation (See NPRM 142, 155)

Deciding Who to Target?Apparent attempt to go after “straw polling” and discriminatory terminations – back door

attempt to criminalize unfair labor practices?

Surprising Changes

Privileged CommunicationsMust disclose agreement, fees, and persuader activity but don’t have to disclose privileged

communication (See NPRM at 65)

Mixed ActivitiesPersuader activity trumps advice; must

disclose even is some activity would be exempt if done alone (See NPRM at 64-65)

FeesBased on the “agreement or arrangement” and NPRM says must report fees for BOTH

advice and persuasion in any agreement that includes persuasion (See NPRM at 65, n. 16)

Check Your CircuitSome Circuits (4th, 5th, 6th and 7th) require firms to report advice activities for clients who did

not even receive persuader activity during the reporting year.

Common Questions•Attorney-client privilege?•“Mixed” persuader-advice situations?•What fees must be reported?

Action Item 1: Comment•Go to regulations.gov and comment (link on our site)•Key topics for comment:• No need for the rule… the cited

“authority” is one-sided and speculative• Far over-reaching (employee surveys,

employee committees, termination decisions)• Unfair – exact same activity is persuasion

in some cases, not others• Burdensome on small (and large)

businesses – virtually every consultant and attorney conversation potentially subject to disclosure• Demonizes and discourages legitimate

and protected employer speech

Action Item 2: Congress•Newly elected Congress = Republican majority•House has appropriations power•Can de-fund regulatory activities (i.e. ergonomics)•NLRB already under pressure due to Boeing case•Key people to contact:• Your congressperson•Members of the House Appropriations

and Education and the Workforce Subcommittees

Action Item 3: Proactive ER•Just the beginning (short elections, micro-units, temps, supervisors, witnesses...)•Key leverage point = direct relationship•“Left of boom” ER practices

BOOM Right of BOOMLeft of BOOM

Situation Assessment

Counter-Campaign

Strategy

Alert Legal, Consulting, Jump Team

Vulnerability Assessment

Positive ER, Engagement

Hiring/Onboarding

Tripwire Team

The Argument from Intimidation is a confession of intellectual impotence… How does one resist that Argument? There is only one weapon against it: moral certainty.

When one enters any intellectual battle, big or small, public or private, one cannot seek, desire or expect the enemy's sanction. Truth or falsehood must be one's sole concern and sole criterion of judgment—not anyone's approval or disapproval; and, above all, not the approval of those whose standards are the opposite of one's own.

Ayn Rand, The Virtue of Selfishness 1964

Never Be Intimidated from Doing Right