'Persuader' rule injunction means time for labor relations activities is now, attorney says

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Union-free senior living operators have a window of opportunity — perhaps a limited one — to take certain steps to maintain that status if they wish, attorney Daniel Burke told those attending an educational session on employment law Monday at the LeadingAge annual meeting in Indianapolis.

That's because an injunction temporarily is in effect blocking the enforcement of a new “persuader” rule that would require employers to publicly report to the federal government all communication with third-party labor relations consultants and attorneys, as well as information about fees and arrangements, related to efforts to try to influence the outcome of union-organizing and collective bargaining campaigns. Failure to file could result in criminal penalties. The rule was to apply to arrangements made on or after July 1.

“This new rule will allow workers to know whether the messages they're hearing are coming directly from their employer or from a paid, third-party consultant,” U.S. Secretary of Labor Thomas E. Perez said at the time. “Full disclosure of ‘persuader' agreements gives workers the information they need to make informed choices about how they pursue their rights to organize and bargain collectively,” he added.

In late June, however, a judge in the U.S. District Court for the Northern District of Texas issued the injunction until the measure's constitutionality is settled. While implementation remains blocked, the old rules apply, and they require only the reporting of “more direct persuader activities,” said Burke, of Graydon Head & Rickey LLP in Cincinnati.

“You have a window of opportunity right now, maybe a limited window of opportunity, to bring in your outside legal counsel to do union avoidance training, or as you might like to call it, labor relations training, and train your supervisors on what to say and not to say, prepare any materials that might be disseminated to employees, and view handbooks and policies that might pertain in some way to working conditions and bargaining,” he said. “Now is the time to do that, because if this rule goes into place, that kind of thing won't be permitted, or if it is permitted, the law firm will have to make some disclosures that neither you nor they probably want to do.”

It remains unclear whether, once the injunction is lifted, the enforcement date of the rule will be retroactive to July 1, Burke said, “but I would tell my clients that this is the time to do it if you want to and if that is a concern to you, remaining union-free.”

Annual meeting day two

The employment law educational session was one of several occurring Monday afternoon after exhibit hall hours. The conference day also included morning sessions as well as a general session at which LeadingAge Board Chairwoman Kathryn Roberts echoed comments President Katie Smith Sloan made Sunday about the organization's new vision: An America freed from ageism.

Keynote speaker Angela Duckworth, Ph.D., a professor of psychology at the University of Pennsylvania and author of the book “Grit: The Power of Passion and Perseverance,” shared with attendees steps on the path to excellence: set a “stretch” goal — an area for improvement, focus as much as possible on your goal, obtain feedback about your performance, and reflect and refine your approach.

“Do I believe in talent? Sure. Do I also believe in luck and opportunity? Absolutely,” she said. “But I also believe in the power of passion and perseverance. And if you want a little more passion and perseverance in your life, ask yourself, ‘How can I get interested? Where is my beyond-the-self purpose here? Can I practice one small thing every day to make it better, even if it's a little frustrating and a little tiring? And can I believe, deep down, that human beings grow, that they grow up, that we mature? Can I lean on other people when I need to, and can I do what I can to contribute to a culture of passion and perseverance, excellence and service?' ”

LeadingAge also bestowed more awards:

The meeting continues through Wednesday.

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