Posted on 11/05/2013 6:47:19 AM PST by Kaslin
Labor Secretary Thomas Perez has given American businesses a short reprieve from a controversial proposed rule that, if promulgated, will restrict business’ ability to obtain legal counsel and other labor relations advice potentially leading to a dearth in labor counseling. Perez told an audience at the U.S. Chamber of Commerce last week that the new rule was “not going to happen” this November, as the Department of Labor had originally planned.
While the Department has received over 9,000 comments on its proposal and considering the negative impact it will have on American businesses, it surprisingly hasn’t received much media attention.
Presently, many companies retain the services of labor consultants, some of whom are attorneys, to help them navigate the labyrinth of American labor laws. These consultants are crucial for business because employers are focused on running their businesses and need labor consultants to assure their compliance with applicable laws. Employers especially turn to labor consultants amidst a union-organizing campaign.
In order to ensure that such consultants are not engaging in nefarious activities, Congress passed the Labor Management Reporting and Disclosure Act (LMRDA) in 1959. The LMRDA requires employers and their labor consultants to file extensive disclosure forms when the consultant communicates with employees in an effort to persuade them whether to exercise their right to organize and/or collectively bargain.
Notably, the LMRDA provides an “advice” exemption which since 1962 has been interpreted to exclude consultants who merely provide advice to the employer but have no direct contact with the employees. Such advice can include, for example, assistance with written material or a prepared speech, provided the employer, not the consultant, is acting as the “persuader.” This interpretation is fully consistent with the statute and is perfectly logical because the consultant is not actively engaged in directly attempting to influence an election or the employees’ views on unionization rather he is only providing advice to the employer who may or may not use it.
However, under the proposed Department of Labor regulation, that exemption would be virtually nullified. The termination of this exemption threatens to impose a heavy regulatory burden on businesses and law firms and disadvantage employers when unions are attempting to organize their employees. At a time when the federal government’s focus should be on creating an environment conducive to job creation, it is instead unnecessarily expanding disclosure requirements to make union organizing easier.
First and foremost, employers’ ability to retain the services of legal counsel will be severely restricted. The proposed regulation requires businesses and the attorneys they hire for labor advice to disclose the existence of the relationship, the nature of the services being provided and the tasks performed. In addition, the attorney and his firm will be forced to disclose not only the legal fees paid by the employer being provided the advice, but by all of the firm’s employer clients who are being provided “labor relations advice and services.” Many, if not most, lawyers and law firms will rightfully be hesitant to release such confidential attorney-client information and will forego providing advice to employers to avoid having to do so. This means that employees will not receive information on the benefits and drawbacks of unionization, ultimately leading to decisions being made on woefully inadequate knowledge.
Under the proposed rule, all the labor relations advice and services a law firm does for a client could end up in a publicly available report to the government. This disclosure of confidential information upends the attorney-client relationship and has raised eyebrows across the legal community, culminating with the American Bar Association expressing its “serious” concerns over the proposed regulation.
But the most important aspect of this story is that the Department of Labor is putting obstacles in front of business owners who are simply seeking advice on labor issues so they can comply with complex laws. If America wants to get its economy back on track, then adding excessive and unnecessary regulations on American employers seems like an illogical step. We can only hope that the Labor Department will exercise common sense and any rule change will radically differ from the one proposed in June 2011.
Now that the GOPe traitors confirmed Richard Griffin as General Counsel of the NLRB, all bets are off and card-check is coming.
I’m just waiting for the first ‘actually aggrieved party’ lawsuits filed against the Federal Government for violation of equal protection under the Constitution. I am curious as to just how Roberts would weasel out of this one.
No aspersions as to you and your business, but I’ve always felt that if you needed a consultant to tell you how to run your business, you shouldn’t be in business.
I don’t need a consultant to help me with what we do for our customers.
You can’t be an expert in everything, nor can you afford to hire experts in everything. Consultants are a nice middle ground for specific tasks like labor law.
Because if you screw it up they’ll happily fine you out of business.
BTW you have to be certified to provide fire extinguisher training and to certify other people.
They also have to certify your fire extinguishers every year. Otherwise you get fined.
That makes sense to me
Labor has to be the first department to go.
If a particular law firm represents corporate client A and corporate client B, and if that law firm directly interacts with employees of both client A and client B, then this article suggests that there are some reporting requirements for that law firm with regard to both client A and client B.
This change in the law basically says that if the lawyers are just working in the background they don't need to report anything about the work they do for client A or client B.
So I think this is a real made up concern. There will be law firms that specialize in labor relations. They will have a number of corporate clients. They will have to do some level of reporting on each of those clients regardless of what happens with a particular client.
There does not really appear to be any violation of attorney-client privilege. It's just saying that they have to say they did a certain amount of work for each client without having to reveal the specifics of what they did.
If I sue someone and win (or lose) then the firms may be required to total their costs so that the winning party can recover his legal costs. I'm sure that most of these law firms have sophisticated accounting software and can generate a bill for each customer at the press of a button.
The only real concern about this law is extending the reporting requirements to legal work done in the background.
I'm noticing that, at least at my company, the suits that run the show are not so much being picked because of their business acumen, but because of their smooth-talking abilities. Could it be that because of the way the current law is written that CEOs are being chosen for their ability to act as well-dressed parrots for the lawyers pulling the strings?
I'm not saying that this recommended change in the law is good. I'm just saying that the arguments against it made by the Chamber are being pulled out of their collective a**es.
It's similar to the arguments that banks used (and insurance companies use) when they say that all states should treat all of them the same so that it will be easier for them to do business anywhere in the US. The result being that we have mega-banks and soon mega-insurance companies that buy up all of the little guys and create monsters that are too big to fail.
In Georgia, they only require inspections of the actual devices. Your state must have a lot of government bureaucrats looking for bribes.
Who will watch the watchers?
Unions vs. Lawyers?
Somehow I’m having a really hard time picking
a dog in that fight...
“No aspersions as to you and your business, but I’ve always felt that if you needed a consultant to tell you how to run your business, you shouldn’t be in business”
That’s a little snarky. I have an appointment with a health care consultant. Was I supposed to stop running and improving my business to become an Obamacare expert? Smart business people spend their time growing and working on their business, not wasting their time becoming experts on every rule and regulation that some politician craps out of their butt.
It seems that the only small businesses that survive will be small closely knit family businesses. As long as family members can stick together, these businesses will be relatively impervious to attack by labor organizers. Families actually do tend to come together during times of stress and even more so when attacked from the outside. There are so many efficiencies and effective means of mutual support than can only be accomplished by families.
There will always be traitors and back sheep, but most family members are willing to stand up for each other against outside forces.
They did? You better check again. The only one who voted for her was Murkowsky of Alaska and as everyone knows is a RINO.
The vote btw was 55-44
44
| Alexander (R-TN) Ayotte (R-NH) Barrasso (R-WY) Blunt (R-MO) Boozman (R-AR) Burr (R-NC) Chambliss (R-GA) Chiesa (R-NJ) Coats (R-IN) Coburn (R-OK) Cochran (R-MS) Collins (R-ME) Corker (R-TN) Cornyn (R-TX) Crapo (R-ID) |
Cruz (R-TX) Enzi (R-WY) Fischer (R-NE) Flake (R-AZ) Graham (R-SC) Grassley (R-IA) Hatch (R-UT) Heller (R-NV) Hoeven (R-ND) Isakson (R-GA) Johanns (R-NE) Johnson (R-WI) Kirk (R-IL) Lee (R-UT) McCain (R-AZ) |
McConnell (R-KY) Moran (R-KS) Paul (R-KY) Portman (R-OH) Risch (R-ID) Roberts (R-KS) Rubio (R-FL) Scott (R-SC) Sessions (R-AL) Shelby (R-AL) Thune (R-SD) Toomey (R-PA) Vitter (R-LA) Wicker (R-MS) |
However, the deal to get that vote was cut by McCain and his “Gang Of” in order to get Harry Reid to back-off the Nuclear Option. So there are plenty of Pubbie fingerprints on this.
And yes, I agree with the poster, Card Check thru the back door is coming and soon.
Here’s Snarky....you have a business exemption for a year so the media says.....you should have just taken the time to write out the explanations why what you offer now is illegal per ACA and cancel everything. If you don’t have the exemption you should have just cancelled all the policies yesterday.
The eight Republican Senators who voted to invoke cloture were Lamar Alexander of Tennessee, Kelly Ayotte of New Hampshire, Susan Collins of Maine, Roy Blunt of Missouri, Bob Corker of Tennessee, Jeff Flake of Arizona, John McCain of Arizona and Murkowski.
They should never have voted for cloture. Had they refused to do so, Griffin would have been blocked. Voting for cloture was a back-door way of getting him in.
Here is my post on the subject last week:
Contact your Senators to vote against cloture for Richard Griffin NLRB General Counsel
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