WASHINGTON ― American companies shell out millions of dollars a year to lawyers and consultants whose job is to kill union-organizing campaigns. Much of that work is done in the shadows, and the Trump administration is looking to keep it that way.
In a blow to unions, the Labor Department on Monday proposed rescinding what’s known as the “persuader rule,” a regulation that would ramp up disclosure requirements for employers who hire anti-union consultants. The Obama administration proposed the persuader rule last year in order to bring more transparency to a profitable industry known colloquially as union-busting.
For decades, employers have had to report to the government when they hire an outside consultant ― i.e., a “persuader” ― to try to sway employees on the question of unionizing. But under Labor Department rules, employers only have to disclose when their consultants communicate directly with employees. They don’t have to report any indirect “advice” they pay for.
That means if the consultants are simply advising managers on what to tell the workers ― the way it’s typically done ― then the employer doesn’t have to reveal the arrangement to the government, keeping it out of public view.
Unions and their allies have long considered that a gaping loophole in labor-management disclosure law. The Obama administration agreed, reasoning that workers have a right to know when their employer is feeding them a consultant’s paid-for anti-union talking points. The previous White House also believed the changes would put employer disclosures more on par with those required of unions. (Unions must report staffer salaries as well as political and organizing expenditures.)
Not surprisingly, business groups had lobbied against the persuader rule, with one group acknowledging the disclosures could embarrass employers. The American Bar Association had opposed it as well, claiming the rule would infringe on attorney-client privileges. Employers sued to stop it, and last year a federal judge in Texas issued a stay before it went into effect.
By rescinding the rule, the Trump administration would ensure that the status quo remains intact. Unions are not happy about that.
Josh Goldstein, a spokesman for the AFL-CIO labor federation, said in a statement that the persuader rule would have made sure employers “can no longer hide the shady groups they hire” to disrupt union campaigns. “Corporate CEOs may not like people knowing who they’re paying to script their union-busting, but working people do,” Goldstein said.
Union membership has plummeted in recent decades, with just 6.4 percent of private-sector workers now belonging to a union. At the same time, many employers have ramped up their opposition campaigns against union organizing. A 2009 study found that workers were significantly more likely to vote against unionizing when the employer hired consultants or held “captive audience” meetings in which they painted unions in a bad light.
Tom Perez, the chairman of the Democratic National Committee, rolled out the persuader rule last year as former President Barack Obama’s labor secretary. He told HuffPost in a statement Monday that when an employer’s words are really coming from a hired consultant, workers should know about it.
“The [persuader] rule doesn’t limit what employers or consultants can say,” Perez noted, “just makes sure that workers will know who’s behind the message. This decision by the Trump administration takes power out of the hands of workers and empowers corporate bosses.”
The administration’s plan to kill the rule is not a done deal yet; the Labor Department said it would be soliciting public comments on the proposal. But in its guidance, the agency laid out a number of reasons why officials are considering killing it, including the court challenges and the “burden” of more disclosure forms. The move is consistent with the Trump administration’s overall anti-regulatory agenda, as they’ve successfully repealed a slew of rules issued by the Obama White House.
Michael Wasser, the legislative director at the Department for Professional Employees, AFL-CIO, said the biggest beneficiaries of a persuader rule repeal would be the consultants who pen scripts and guide anti-union campaigns for employers. By keeping the work in the dark, he said, the Trump administration would help assure it remains lucrative.
“Employees never see the person who’s pulling the strings of the campaign; they just see managers giving these presentations,” Wasser said. “I think this is a win collected by an industry that’s found a lot of profit in broken labor law.”