• Interpretation of the “Advice” Exemption

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Interpretation of the “Advice” Exemption

The Office of Labor-Management Standards of the Department of Labor (Department’) is revising the Form LM-20 Agreement, Activities Report and the Form LM-10 Employer Report in response to its June 21, 2011 Notice of Proposed Rulemaking (NPRM). In the NPRM, the Department proposed to revise its interpretation of the advice exemption in section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA) to better effectuate the requirement that employers and their labor relations consultants report activities undertaken with an object, directly or indirectly, to persuade employees about how to exercise their rights to union representation and collective bargaining.

The final rule adopts the proposed rule, with modifications, and provides increased transparency to workers without imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its position on matters relating to union representation or collective bargaining. The final rule also maintains the LMRDA’s section 203(c) advice exemption and the traditional privileges and disclosure requirements associated with the attorney-client relationship. Additionally, with this rule, the Department requires that Forms LM-10 and LM-20 be filed electronically, 81 Fed. Reg. 15924. This final rule is effective on April 25, 2016 and will be applicable to arrangements and agreements, as well as payments (including reimbursed expenses), made on or after July 1, 2016.