Union Updates: Employers Required to Disclose Consultants/Attorneys; “Fair Share” Fees Persist


Varies; See Below


Varies; See Below


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This HR Alert covers the following topics:

  1. U.S. Department of Labor Requires Employers to Disclose Consultants/Attorneys Hired to Respond to Union Activity
  2. Supreme Court Deadlocked on “Fair Share” Fees

U.S. Department of Labor Requires Employers to Disclose Consultants/Attorneys Hired to Respond to Union Activity

Applies to: All Employers who Hire Consultants/Attorneys to Persuade Employees on Union/Collective Bargaining Matters Effective Date:  July 1, 2016

A recent DOL Rule requires that disclosures are provided when consultants/attorneys are engaged to perform any work that has the “ultimate objective of persuading employees,” even if they do not communicate directly with employees.  This broad term can include any work that involves planning, directing, or coordinating managers to persuade employees, providing materials to an employer to distribute to workers, conducting seminars for employers or management, and developing strategies, personnel policies, practices, or actions to persuade workers.  However, this does not apply to a consultant or attorney merely reviewing or revising the employer’s self-made material when the revision is to ensure legal compliance, rather than to make the document more persuasive.The U.S. Department of Labor (DOL) will now require employers, attorneys, and consultants to make disclosures whenever an employer has hired them to assist in persuading employees on union representation and collective bargaining matters.


Supreme Court Deadlocked on “Fair Share” Fees

Applies to: All Employers with Unions/Collective Bargaining Agreement Effective Date:  March 30, 2016

The Supreme Court announced a deadlocked 4-4 verdict on March 30, 2016 in Friedrichs v. California Teachers Association, upholding the “fair share” union fee requirement—such that unions can continue collecting fees from non-members.  Originally arising from the 1977 case Abood v. Detroit Board of Education, this fee requires public employees to pay a due if they belong to a bargaining group but are not a part of a union.

The Supreme Court’s vote was originally predicted to run 5-4 in favor of dismantling the “fair share” fee, but with the recent death of Justice Antonin Scalia, the Court instead announced a 4-4 tie.  “Fair share” fees are expected to face future challenges from opponents of unions once a new Justice is appointed.


Action Items:

  1. Read the full text of the U.S. DOL’s rule on Disclosures here.
  2. If your organization has employees currently engaged or interested in union representation, ensure management, consultants and attorneys are aware of the need to make disclosures.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2016 ManagEase, Incorporated.

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