The Department of Labor has suggested and is planning on making modification to the Labor-Management Reporting and Disclosure Act ("LMRDA"). This legislation was originally enacted in 1959 and was meant to:
To provide for the reporting and disclosure of certain financial transactions and administrative practices of labor organizations and employers, to prevent abuses in the administration of trusteeships by labor organizations, to provide standards with respect to the election of officers of labor organizations, and for other purposes.
(Source: Department of Labor).
The Department of Labor now, however, wants to enact sweeping changes that could have a significant effect on employers and their communication with counsel. Originally, employers and their labor relations consultants (mostly labor attorneys) had to disclose to the Department of Labor any agreement or arrangement with a "labor relations consultant or other independent contract or organization" that develops or works with employers to develop materials meant to persuade employees, either directly or indirectly, regarding their right to collective bargain. This, of course, did not require employers to disclose advice subject to the attorney / client privilege. This would no longer be the case.
Specifically, the DOL's modifications have wide implications for employers. Specifically, the "legal advice" exemption would be "gutted" and employers would have to disclose any communication, whether direct or indirect, if it is deemed "persuasive." This is true regardless of privilege. Plainly put, communication between employers and their counsel, if persuasive as to an employee's decision to exercise or not exercise a right to organize and collectively bargain with their employers, must be disclosed.
This sweeping change would go so far as to require employers to disclose "drafts" of documents prepared by attorneys on behalf of employers regarding communications to be sent to employees. Both the American and Ohio Bar Association oppose the amendment. The ultimate outcome is that employers will have to make a substantial amount more disclosures creating great expense and potentially disclose advice given to them by their attorneys. Don't be fooled however, the amendment has teeth: employers that violate the proposed rule could be subject to up to a year in jail and a $10,000 fine.
Labor attorney such as those at Mowery Youell & Galeano, Ltd. are gearing up to deal with these changes and seriously doubt this amendment's constitutionality. If you are employer, contact our labor attorneys and start planning today!
By: Nicholas W. Yaeger