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In addition, at a time when the Labor Department should be focusing on policies that willlead to economic growth and job creation, it is a travesty that instead the Department is investingresources in policy changes that will not create a single new job, but will instead create a furtherdrag on job creation. Furthermore, we agree with President Obama’s recent statement that “Weshould have no more regulation than the health, safety, and security of the American peoplerequire.”
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Unfortunately, this proposal fails that test.For these and other reasons, the Chamber vigorously opposes the proposal and urges theDepartment to withdraw it.
II. The Proposal Radically Expands Reporting Obligations
The Department has significantly narrowed the advice exemption and has expandedreporting obligations vastly. If implemented, the proposed interpretation would be exceedinglydifficult for employers and consultants to apply. This section summarizes the most significantaspects of the Department’s proposal that will be referred to throughout these comments.
A. The Proposal Renders the Advice Exemption Nearly Meaningless
The Department has proposed to revise the definition of “advice” to reduce the scope of exemption from LMRDA reporting and disclosure requirements. Currently, the “advice”exemption excludes from reporting and disclosure requirements agreements between employersand their human resource management consultants, attorneys, and other services providers thatdo not involve direct communication to employees by the consultants, attorneys or other serviceproviders regarding employee rights to collectively bargain.The proposed revision of the “advice” exemption would remove the “bright-line” test of direct communication with employees and substitute a subjective test involving the intent of theagreement to assist employers to persuade employees directly or indirectly regarding their choiceto collectively bargain. Even if the consultant, attorney or other service provider never directlycommunicates with employees, an agreement would trigger reporting and disclosurerequirements by the employer (on OLMS Form10) and by the consultant, attorney or otherservice provider (on OLMS Form 20) if the agreement includes any services by the consultant,attorney, or other service provider(1) to draft or edit potential employee communications materials on behalf of theemployer that the employer would deliver to employees;(2) to draft or edit potential employer policies regarding employee pay, benefits, orworking conditions;(3) to draft, edit, conduct or analyze employer surveys of employee opinionsregarding pay, benefits, working conditions, or employee participation in workplacepolicy formation or implementation;(4) to train the employer’s managers, supervisors or administrative personnelregarding communication with employees; or(5) to provide other services to the employer
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Cong. Rec. H6008 (daily ed. Sept. 8, 2011)(Statement by President Obama).
