Many senior living operators are nervously watching as a “persuader rule” proposal plays out in Washington and several courtrooms.
At issue is a federal push for additional reporting mandates for firms that counter unionization efforts.
The new Labor Department rules would require operators to divulge more information about the help they receive when attempting to repel such initiatives. Specifically, the final rule mandates that employers and hired consultants must file reports for both direct persuader activities (such as consultants talking to workers) and indirect activities. The latter category covers things such as consultant-developed scripts that help managers and supervisors in conversations with employees.
“Workers often don’t know that their employer hired a consultant to manage its message in union organizing campaigns, including by scripting speeches by managers, talking points, letters and other documents,” Labor Secretary Thomas Perez said while unveiling the new proposal.
Opposition and support have fallen along largely predictable lines. Organizations representing firms generally have blasted the measure, whereas those allied with labor have countered that it is long overdue.
The Associated Builders and Contractors has been a particularly harsh critic. Kristen Swearington, who is a vice president of legal affairs for the organization, said the final rule “is clearly an attempt by [the Labor Department] to restrict employers from communicating the potential pros and cons of unionization with their employees.” Others have argued that the measure violates attorney-client privilege.
David French, a lobbyist for the National Retail Federation, says his organization is concerned that the new standard “will discourage employers from seeking advice of counsel in a broad swath of areas that have nothing to do with traditional persuader activities.”
Senior Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas seemed to agree. In late June, he granted a preliminary injunction that prevented the proposed rule from taking effect.
The persuader rule would create “substantial potential conflicts” for attorneys and imposes “content- based burdens” on speech and can- not survive strict scrutiny, he added.
For organizations opposed to the new measure, his ruling was a clear victory — and prevented its July 1 implementation.