So, as I said in my last post, we have read this new persuader rule front to back and back to front. Last week, we told you why we are suing the government: the new interpretation is unfair and unlawful. This week, because the DOL went completely off the reservation, I thought we should poke a little fun at it for some of its ridiculous positions, so here goes.
DOL says it is interpreting the “advice” exemption, but it completely reconfigures the definition of persuasive activity. The statute refers to persuasive activity as activity with the direct or indirect object to persuade. Somehow, DOL tangled itself in knots over this one. It now thinks that direct persuasive activity means the persuader has direct contact with employees and indirect persuasive activity means you do not have direct contact with employees. Do you see anything about that in the statute? Neither do I. That’s because it’s not there. The terms “direct” and “indirect” modify the objective, and have nothing to do with contact with employees. Obviously, you need to have contact with employees to directly or indirectly persuade them regarding their rights.
DOL’s rule conflates a principle put in place by the former rule, that persuaders need only report direct contact with employees, with the language in the statute, that activity with the direct or indirect object to persuade must be reported. In so doing, the DOL’s position is that all advice, which is expressly exempted from the reporting requirement, is now considered indirect persuasive activity that must be reported.
Let’s see how this can play out. DOL actually admits that the new rule is so broad that it can cover an interior decorator (even if unlikely). Holy smokes! Consider the following quote from the Final Rule:
Similarly, in response to a hypothetical posed by one commenter, an employer who hires an interior decorator to improve the working conditions at its facilities would not trigger a reporting requirement, per se, merely because a possible effect of such workplace change could be the subtle influencing of employees concerning their right to organize. Rather, to trigger reporting the interior decorator, like any third party, must undertake its activities with that object in mind. That such a scenario would be reportable is highly unlikely. That an agreement between the parties would call for the design of a workplace –layout, furnishings, wall coverings, lighting, fixtures, and so forth — to create an anti-union ambience seems a remote prospect.
DOL says that the interior design would have to create an anti-union ambience (really, it should have said it has to create a persuasive ambience, but it just couldn’t help itself), but the rule is clear that if you provide advice regarding any policies or benefits to employees with the object to persuade the employees not to organize, DOL’s position is that the obligation to report is triggered. In other words, it is not whether the policy itself (or in this case the ambience of the interior design) is “anti-union” but whether the intent behind the implementation of the policy is to remain union free. The commenter rightly asked whether an employer that hires an interior decorator and says to make our shop nicer than the unionized shop down the street so employees do not organize has triggered the reporting obligation.
Here’s another illustration of how vague this all is. Say you hire a consultant to revise your handbook. She revises the entire handbook and you pay her for her services. When she gets the check, she says to you, “I did you a solid- your handbook is now so good for your employees, they will never unionize,” revealing that she did the work, under the DOL’s new interpretation, with the object to persuade employees not to organize. Is the reporting requirement triggered? Even though you had no idea and never asked the consultant to act with that intent? Yikes.
I could go on forever. My colleagues would sure agree that I’ve taken up enough of their time obsessing about the ludicrous nature of this rule. But if you share my outrage and want to commiserate, give me a call. I’m sure my colleagues would thank you.