One of the worst ideas that the Obama administration has proposed, making it harder for employers to obtain legal advice, is apparently moving forward. On Dec. 7, the U.S. Department of Labor submitted a draft final regulation to the White House for review which would do exactly that, assuming that the draft contains the provisions found in the proposed rule.
In the midst of a union campaign to unionize an employer, many engage attorneys and other consultants to help guide them through the process. The need for this is obvious. Labor law is voluminous and complex. For example, just one part of the Casehandling Manual from the National Labor Relations Board, “Part Two,” dealing with proceedings in issues surrounding unionization elections is 332 pages long. All but the largest employers will have a high degree of difficulty in understanding everything that is contained in these 332 pages and the pages of other manuals, regulations, and case law without engaging counsel. Employers who attempt go to through these situations without engaging counsel often find themselves on the receiving end of an unfair labor practice charge. These can easily happen because most employers are unlikely to know all the ways that they can unintentionally commit a supposed unfair labor practice, such as making a promise to increase wages or actually increasing wages during a unionization campaign.
Among other things, the proposed regulation would require attorneys to publicly disclose the clients that obtain the kind of services discussed above, and the payments received from these clients. The proposed regulation would put attorneys in the intolerable position where they would have to choose whether to violate their duty to protect client confidences and secrets, or to report these to a federal agency. That the Obama Administration has even considered encroaching on this relationship should scare everyone — but they’ve gone further in actually proposing a regulation on this point. Breaching the confidentiality of the attorney-client relationship means that fewer employers will seek advice from attorneys and fewer attorneys will be willing to give advice in this area because all their labor relations clients will be revealed in a federal filing.
The administration, of course, knows all this, and is clearly working to favor unions. Couple the Labor Department’s proposed regulation with the newly promulgated election procedures regulations from the National Labor Relations Board and the result is clear: employers get less time to respond to a unionization campaign and have increased difficulty in obtaining counsel to help them through this process.
As if this was not bad enough, it is not just employers who are in the crosshairs of a union that have to be concerned about the proposed regulation. In some situations a contract intern who “Googles” to get information for an employer about a union could be required to file a federal disclosure report. In some instances, printing copies of union information directly from the Labor Department’s website and disseminating that information could require the filing of a federal report.
The Obama administration should not create barriers for employers to know how to comply with the law. They should also not create potential regulatory traps. This, however, is exactly what they have proposed to do. The proposed rule was a bad idea from the start. That the administration put the proposal on the back burner for more than four years and are only now moving ahead with it now that they have no more elections to run shows that they worried about its electoral consequences as well. The proposed regulation should be summarily dumped into the bin of bad ideas and never brought up again.
Nathan Mehrens is President of Americans for Limited Government Foundation and previously served in the U.S. Department of Labor’s Office of Labor-Management Standards.