GAG RULE The DOL Attack on Employer Free Speech

1. GAG RULEThe DOL Attack on Employer Free Speech

2. Agreement to Provide Labor Relations Services? No Report Required Agreement covers direct communication to non-supervisory employees? No Yes Yes Is the indirect communication intended to persuade? Yes Labor Management Reporting and Disclosure Act of 1959 Yes No Is the persuasive communication covered by the “advice” exception? Report Required

3. 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 Labor Management Reporting and Disclosure Act of 1959 Employer Report - Form LM-10 Due 90 days from the end of your fiscal year

4. 1960 Interpretation Speeches, written materials = “persuader” activity • “Advice” exemption – Section 203(c) of LMRDA • Applies to consultants and attorneys • Exempts “advice” from disclosure rules 1962 Re-Interpretation Speeches, written materials = “advice” activity 2001 Re-interpretation Speeches, written materials = “persuader” activity unless that activity is mere review and revision 2011 Re-interpretation?

5. Persuader activities include drafting, revising or providing: • Materials for presentation, dissemination, distribution to employees • Speeches • Audiovisual, multimedia presentation • Website content • Planning, conducting one-on-one or group meetings • Employee attitude surveys concerning union awareness, sympathy or “proneness” • Training supervisors to conduct meetings • Coordination or directing activities of supervisors • Establishing or facilitating employee committees • Developing personnel policies • Deciding which employees to target for persuader activity or disciplinary action • Conducting a seminar for supervisors • Other (must explain) June 21, 2011 Notice of Proposed Rulemaking: The New Rules (proposed) • 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)

6. Seminars and Conferences If persuader materials are offered then DOL says reporting is triggered (See NPRM at 63-64) Employee Surveys Developing or conducting surveys concerning union awareness can trigger reporting (See NPRM at 69) Surprising Changes Employee Committees Establishing 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?

7. Privileged Communications Must disclose agreement, fees, and persuader activity but don’t have to disclose privileged communication (See NPRM at 65) Mixed Activities Persuader activity trumps advice; must disclose even is some activity would be exempt if done alone (See NPRM at 64-65) • Common Questions • Attorney-client privilege? • “Mixed” persuader-advice situations? • What fees must be reported? Fees Based 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 Circuit Some 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.

8. 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

9. 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

10. Hiring/Onboarding Situation Assessment Vulnerability Assessment Positive ER, Engagement • 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 Right of BOOM Left of BOOM BOOM Counter-Campaign Strategy Alert Legal, Consulting, Jump Team Tripwire Team

11. Never Be Intimidated from Doing Right 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