Delayed, Not Dead: Obama’s Labor Department Announces Timing Of New Persuader Regulations

Thomas Perez @ AFL-CIO - via DOL

Besides the damage that ObamaCare is doing to the job market, if people believed that the President’s administration would be a “lame duck” in the President’s second term, they don’t know the Obama Administration.

In fact, without a re-election to worry about, Barack Obama’s second term may be worse for companies than the first when it comes to new onerous regulations.

In what has become common form with the Obama Administration, with little fanfare and virtually no media scrutiny, two days before the Thanksgiving Holiday, the Department of Labor announced a slew of proposed regulations that will be foisted on America’s employers in the early months of the New Year.

Among the many regulations that will be published for 2014 is the revised so-called “persuader” regulation which is now scheduled to be released in March.

Persuader Reg

First proposed in 2011, the Department of Labor’s 160-page proposed re-interpretation of the 1959 Labor Management Reporting and Disclosure Act was blasted by individuals and professional associations alike during the open period for public comments.

While many believe that the agency’s re-interpretation of the 54-year old law will only affect companies when they hire lawyers or consultants who advise them on union-related issues, the agency’s proposal actually goes much further than that.

The DOL’s proposal was written so broadly that the agency could end up going after companies who hire anyone who advises them on almost anything related to employees that could “indirectly” affect employees in the exercise of their rights under the National Labor Relations Act.

For example, as originally drafted, if an employer hires either an attorney, firm, or consultant that advises the employer in:

  • Developing or writing an employee handbook
  • Conducting an employee satisfaction survey
  • Setting up employee focus groups or roundtables
  • Setting up a safety committee
  • Setting up employee compensation…

…all of these may be deemed “persuader activity” under the DOL’s proposed re-interpretation of the 1959 law.

Worse yet, as the information disclosed by companies and their advisors becomes public information almost immediately, the DOL’s proposal may, in fact, put some individuals who assist employers during labor disputes into physical danger.

What makes the DOL’s proposal more damning is the fact that the person in charge of enforcing the “persuader” regulations at the Office of Labor Management Standards is another recently-appointed union radical.

Although the persuader regulations are to be issued in March, they are but one of a slew of changes coming from the Department of Labor that promise to keep employers on the ropes in 2014.

According to Michael Lotito, a partner with the law firm Littler Mendelson, the Department of Labor has been busy dreaming up plans to continue hammering companies.

According to the DOL’s Fall 2013 Agency Rule List, the agency has either recently issued or is ready to publish 24 final rules in the months ahead. In addition, the DOL is working on 31 rules at the proposed stage, 11 regulatory measures in the pre-rule category, and six long-term regulatory efforts.

For many employers, if they thought Barack Obama’s first term was horrific, they may be in for a big surprise in 2014.

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