On July 28, the U.S. Department of Labor, Office of Labor-Management Standards, issued its final revision of Form LM-10 and a Fact Sheet. The revised form will require employers who use labor “persuaders” to indicate when the reportable “persuader activity” expenditures or agreements “concern employees performing work pursuant to a [f]ederal contract or subcontract.” Covered employers will be required each fiscal year to complete and electronically file the new Form LM-10 starting August 28.
What is a “persuader”?
The Labor-Management Disclosure and Reporting Act authorizes the USDOL to require employers to provide certain information regarding persuader activity. Under the LMDRA, “persuaders” are generally third-party consultants retained by employers (1) to obtain information concerning the activities of employees or a labor organization in connection with a labor matter involving the employer (the USDOL calls this “surveillance”), or (2) to persuade employees about the exercise, non-exercise, or manner of exercising, their rights to organize and bargain. USDOL regulations require that employer expenditures and agreements for such activities be reported by the employer using Form LM-10.
Historically, expenditures for labor “advice” from legal counsel and other labor and employee relations/human resources consultants did not have to be reported on the Form LM-10. This is known as the LMRDA’s “advice exception.” When taking advantage of the advice exception, attorneys and consultants do not engage in direct persuading communication with employees, thereby avoiding reportable persuader activity. The new Form LM-10 does not make any changes in this regard.
In 2016, an effort was made by the Obama Administration to narrow, if not eviscerate, the advice exception through administrative interpretation. But after a successful federal court challenge to the USDOL’s strained interpretation of the LMRDA, the effort was abandoned by the agency in 2017.
The revised Form LM-10
The revised Form LM-10 that must be used starting later this month newly requires employers with LM-10 reporting obligations to indicate whether the expenditures or agreements “concern employees performing work pursuant to a [f]ederal contract or subcontract.”
Employers who answer “Yes” are required to identify the federal agency or agencies with which the employer has contracted (unless providing the agency name would reveal classified information), the employer’s contractor “Unique Entity Identifier” number if it has one, and a “full explanation” of the purposes and circumstances of the persuader activity expenditures or agreements. The instructions of the form state, among other things, that the “explanation must fully outline the conditions and terms of all listed agreements, including fully identifying the subject group of employees (i.e., the particular unit or division in which those employees work).”
The current leadership at the Office of Labor-Management Standards believes that the policy of the LMRDA for full disclosure of “reportable” expenditures and agreements is better supported by allowing the public and employees to know the source of the funding for reportable expenditures and agreements.
All filed Form LM-10s are available for public view electronically via the OLMS Online Public Disclosure Room. According to an OLMS-News 04-23, “The final revision explains that the transparency created by the revision would better inform workers in making determinations regarding the exercise of their rights to organize and bargain collectively.” As is often the case, the policy goal stated by the agency takes a one-sided view of employee rights under federal labor law, without even a mention of employees’ equivalent right under the National Labor Relations Act “to refrain” from such organizing and collective activity.