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DOL Sets November 2013 Date for New Persuader Rules While NLRB Continues To Limit Employee Handbook Policies

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update
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Earlier this week, the White House released its Spring Agenda. The Agenda states that the Department of Labor (DOL) intends to revise the "advice exception" to the Labor-Management Reporting and Disclosure Act of 1959 ("Persuader Rule") sometime in November 2013. The revised regulation will drastically expand the types of communication and information required to be reported to the DOL, including the possibility of communications between employers and their attorneys. Currently, this "advice exception" does not require the reporting on labor consultant's activity that is giving or agreeing to give advice to an employer, or communications between an employer and its attorney under attorney-client privilege. Under the proposed changes, "persuader activity" will include "advice" given by a labor consultant to an employer regarding employees' rights to organize or bargain collectively. If such "advice" occurs, then it will be required to be reported to the DOL.This change in the law will have significant repercussions for both employers and their counsel.

Also noteworthy, the National Labor Relations Board (NLRB) recently found that provisions governing Confidentiality and Non-disparagement in employment agreements were both unlawful. The NLRB found that requiring employees to not "publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees..." was too broad in limiting employees' right to communicate about working conditions. Likewise, the NLRB concluded that requiring employees to keep "personnel records" confidential directly impaired employees' right to organize under the law. This is noteworthy in that the NLRB is broadening its focus of handbook policies to all employment documentation, including individual employment agreements.