Understanding Financial Disclosure of Persuader Activities

By: Pete Lareau.

THIS ARTICLE ADDRESSES THE PERSUADER REPORTING RULES under the Labor-Management Reporting and Disclosure Act (LMRDA).¹ For many years, the U.S. Department of Labor (DOL) had almost always maintained that an outside counsel’s creation or review of written content that formed the basis of subsequent communications to employees was advice that did not subject the employer and attorney to persuader reporting obligations unless counsel communicated with employees directly. On March 24, 2016, the DOL promulgated a new rule stating that an outside attorney’s creation or review of written materials that forms the basis of subsequent communications to employees trigger “persuader” reporting obligations if the goal of the written materials is to persuade employees concerning collective bargaining or union organization. We discuss federal district court holdings interpreting the new rule—including a Texas federal district court’s June 27, 2016 ruling that enjoined the DOL’s enactment of the new rule. The DOL will almost certainly appeal this decision. We examine the changes that this new rule would potentially cause in the context of the historical interpretation of the “advice exemption.” Furthermore, we address the potential imposition of reporting requirements on law firms representing employers that are far more draconian than appear on the face of the new rule.

For additional information on communications between employers and employees during union campaigns, Navigating an Employer’s Communications with Employees During a Union Campaign.

Reporting Requirements Under LMRDA Section 203

Section 203 of the LMRDA requires, among other things, the disclosure of agreements or arrangements between employers and labor relations consultants (including attorneys) pursuant to which the consultant undertakes or agrees to undertake activities to directly or indirectly persuade employees regarding the exercise of their rights to organize and bargain collectively. Disclosure is also required of agreements or arrangements pursuant to which the consultant undertakes to supply information to an employer concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer. Such disclosures are made on Forms LM-10 (Employer Report) and LM-20 (Agreement and Activities Report), respectively. Under an exception set forth in Section 203(c) of the LMRDA, reporting is not required if the consultant is “giving or agreeing to give advice” to the employer or is representing the employer before any court, administrative agency, or tribunal of arbitration, or in collective bargaining. Under a Final Rule published by the Department of Labor’s Office of Labor-Management Standards (OLMS) on March 24, 2016,² the scope of that exception was definitively narrowed from the interpretations previously adopted by the OLMS, such that the reporting requirement will cover most activities undertaken by counsel (and lay consultants) representing clients with respect to union organizational campaigns.

History of Reporting Requirement

Overview

With the exception of one brief period, the OLMS had always interpreted the term advice in the exception to Section 203 to exclude employer-consultant agreements from the reporting requirement if the consultant had no direct contact with employees and only provided to the employer (or supervisors) advice or materials for use in persuading employees.³ However, the OLMS now believes that interpretation is overly broad for the following reason:

Under the prior interpretation, reporting was effectively triggered only when a consultant communicated directly with employees. This interpretation left a broad category of persuader activities unreported, thereby denying employees important information that would enable them to consider the source of the information about union representation directed at them when assessing the merits of the arguments and deciding how to exercise their rights.⁴

In a Notice of Proposed Rule Making published in the Federal Register on June 21, 2011 (NPRM), the OLMS proposed to significantly narrow the interpretation of the term advice so that a wide range of consultant activities not then subject to the reporting requirement would no longer qualify for the exception.⁵ Consistent with its expansion of the definition of the term advice to encompass a wide variety of consultant activities then excluded from the reporting requirement, the NPRM proposed revisions to Forms LM-10 and LM-20 that included a checklist of activities that would qualify as advice and, therefore, trigger the reporting requirement.⁶ Finally, the NPRM proposed that Forms LM-10 and LM-20 be submitted electronically. The various changes contained in the NPRM incorporated, within the definition of advice, activities traditionally undertaken by management counsel but excluded from the reporting requirement.

On March 24, 2016, the OLMS adopted a Final Rule that “largely implements the Department’s proposal in the NPRM, with [some] modifications of several aspects of the revised instructions as proposed.”⁷

Enactment of the LMRDA

The LMRDA was enacted in 1959, partially in response to the findings of the Senate Select Committee on Improper Activities in the Labor or Management Field, commonly known as the McClellan Committee, which found “a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct”⁸ in labor-management relations. The LMRDA was intended to correct these problems by opening to public scrutiny—by means of financial reporting and disclosure requirements—activities that frequently took place in the background.⁹

Regulatory Authority

Section 208 of the LMRDA¹⁰ authorizes the Secretary of Labor to issue such rules and regulations as are necessary “to prevent the circumvention or evasion” of the LMRDA’s reporting and disclosure provisions. Section 210¹¹ authorizes the Secretary to bring a civil action to enforce those provisions, and, under section 209,¹² willful violations of the reporting requirements, knowing false statements made in a report, and knowing failures to disclose a material fact in a report are subject to criminal penalties.

Statutory Reporting Provisions

Section 203(a) of the LMRDA¹³ requires an employer to report any payment to, or agreement or arrangement with, a labor relations consultant pursuant to which the consultant undertakes activities (or agrees to do so) if an object of those activities is “to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing.” The report must be one “showing in detail the date and amount of each such payment . . . [or] agreement . . . and a full explanation of the circumstances of all such payments, including the terms of any agreement or understanding pursuant to which they were made.” The implementing regulations specify that the information be provided on Form LM-10.

Section 203(b)¹⁴ of the LMRDA imposes similar requirements on labor relations consultants. It also requires consultants subject to this reporting requirement to report receipts and disbursements of any kind “on account of labor relations advice and services.” The implementing regulations require reportable activity to be filed on Form LM-20, “Agreement and Activities Report,” within 30 days of entering into the reportable agreement or arrangement. Any receipts resulting from a reportable agreement or arrangement must be filed on Form LM-21, “Receipts and Disbursements Report,” within 90 days of the end of the consultant’s fiscal year in which they were received.

Section 203(c)¹⁵ creates the exception:

Nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer or representing or agreeing to represent such employer before any court, administrative agency, or tribunal of arbitration or engaging or agreeing to engage in collective bargaining on behalf of such employer with respect to wages, hours, or other terms or conditions of employment or the negotiation of an agreement or any question arising thereunder.¹⁶

Overriding all is section 204, which exempts from the reporting requirement “any information which was lawfully communicated to [an] attorney by any of his clients in the course of a legitimate attorney-client relationship.”¹⁷

Prior Regulatory Interpretation of Advice

Historically, regulations promulgated by the Department of Labor at 29 CFR §§ 405.6(b) and 406.5(b) addressed the advice exemption but merely tracked the statutory language and “did not set forth the Department’s interpretation of the exemption.”¹⁸ However, in 1960, the Department took the position that drafting “speeches or written material to be delivered or disseminated to employees for the purpose of persuading such employees as to their right to organize and bargain collectively” constituted advice within the meaning of the statute.¹⁹ In 1961, an article authored by a Department of Labor official stated that “the drafting of speeches or written material by a consultant or lawyer was reportable.” The article continued that, while advice to a client about a speech or letter drafted by the client is not reportable, revision of the speech or letter by the lawyer or consultant would be reportable because the Department took the position that “reporting is required in any situation where it is impossible to separate advice from activity which goes beyond advice.”²⁰

In 1962, the Department of Labor revised its position on the correct interpretation of what constitutes advice. The revised position was reflected as guidance in Section 265.005 of the LMRDA Interpretative Manual (IM), a document that serves as guidance to the staff of the OLMS:

The question of application of the “advice” exemption requires an examination of the intrinsic nature and purpose of the arrangement to ascertain whether it essentially calls exclusively for advice or other services in whole or in part. Such a test cannot be mechanically or perfunctorily applied. It involves a careful scrutiny of the basic fundamental characteristics of any arrangement to determine whether giving advice or furnishing some other services is the real underlying motivation for it.

[I]t is plain that the preparation of written material by a lawyer, consultant, or other independent contractor which he directly delivers or disseminates to employees for the purpose of persuading them with respect to their organizational or bargaining rights is reportable . . . .

However, it is equally plain that where an employer drafts a speech, letter or document which he intends to deliver or disseminate to his employees for the purpose of persuading them in the exercise of their rights, and asks a lawyer or other person for advice concerning its legality, the giving of such advice, whether in written or oral form, is not in itself sufficient to require a report. Furthermore, we are now of the opinion that the revision of the material by the lawyer or other person is a form of written advice given the employer which would not necessitate a report.

A more difficult problem is presented where the lawyer or middleman prepares an entire speech or document for the employer. We have concluded that such an activity can reasonably be regarded as a form of written advice where it is carried out as part of a bona fide undertaking which contemplates the furnishing of advice to an employer. Consequently, such activity in itself will not ordinarily require reporting unless there is some indication that the underlying motive is not to advise the employer. In a situation where the employer is free to accept or reject the written material prepared for him and there is no indication that the middleman is operating under a deceptive arrangement with the employer, the fact that the middleman drafts the material in its entirety will not in itself generally be sufficient to require a report.²¹

In early 2001, the Department of Labor published a narrower interpretation of the advice exemption as a “notice of revised statutory interpretation,” but did not request public comment.²² On April 11, 2001, the Department rescinded the revised interpretation because of “insufficient evidence to justify the revised interpretation and a lack of notice-andcomment procedures.”²³

The Changes to the DOL’s Interpretation of the Rule

The Final Rule, which a federal district court in Texas enjoined on June 27, 2016, rejects the concept that the application of the advice exemption depends upon whether or not the consultant has direct contact with employees and whether the employer is free to accept or reject the lawyer or consultant’s advice. Under the Final Rule,

exempt “advice” activities are . . . now limited to those activities that meet the plain meaning of the term: An oral or written recommendation regarding a decision or course of conduct. The rule restores the traditional meaning to the term whereby an attorney or a labor relations consultant does not need to report, for example, when he counsels a business about its plans to undertake a particular action or course of action, advises the business about its legal vulnerabilities and how to minimize those vulnerabilities, identifies unsettled areas of the law, and represents the business in any disputes and negotiations that may arise. It draws a line between these activities, which do not have to be reported, and those activities that have as their object the persuasion of employees—activities that manage or direct the business’s campaign to sway workers against choosing a union—that must be reported. An employer’s ability to “accept or reject” materials provided, or other actions undertaken, by a consultant, common to the usual relationship between an employer and a consultant and central to the prior interpretation’s narrow scope of reportable activity, no longer shields indirect persuader activities from disclosure.²⁴

The instructions on the revised reporting forms state:

An agreement or arrangement is reportable if a consultant undertakes activities with an object, directly or indirectly, to persuade employees to exercise or not to exercise, or to persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing (hereinafter “persuade employees”). Such “persuader activities” are any actions, conduct, or communications with employees that are undertaken with an object, explicitly or implicitly, directly or indirectly, to affect an employee’s decisions regarding his or her representation or collective bargaining rights. Under a typical reportable agreement or arrangement, a consultant manages a campaign or program to avoid or counter a union organizing or collective bargaining effort, either jointly with the employer or separately, or conducts a union avoidance seminar.²⁵

The instructions also provide that reporting an agreement or arrangement, which need not be in writing,²⁶ is triggered in the following circumstances:

(1) A consultant engages in direct contact or communication with any employee, with an object to persuade such employee; or

(2) A consultant who has no direct contact with employees undertakes the following activities with an object to persuade employees:

(a) Plans, directs, or coordinates activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees;

(b) Provides material or communications to the employer, in oral, written, or electronic form, for dissemination or distribution to employees;

(c) Conducts a seminar for supervisors or other employer representatives; or

(d) Develops or implements personnel policies, practices, or actions for the employer.²⁷

The revised interpretation of persuader activities is expansive. The new Form LM-10 includes the following examples:

• Planning or conducting individual employee meetings
• Planning or conducting group employee meetings
• Training supervisors or employer representatives to conduct such meetings
• Coordinating or directing the activities of supervisors or employer representatives
• Establishing or facilitating employee committees
• Drafting, revising, or providing speeches, written material, website, audiovisual, or multimedia content for presentation, dissemination, or distribution to employees, directly or indirectly (including the sale of off-the-shelf materials where the consultant assists the employer in the selection of such materials)
• Developing employer personnel policies designed to persuade, such as when a consultant, in response to employee complaints about the need for a union to protect against arbitrary firings, develops a policy under which employees may arbitrate grievances
• Identifying employees for disciplinary action, reward, or other targeting based on their involvement with a union representation campaign or perceived support for the union Coordinating the timing and sequencing of union avoidance tactics and strategies²⁸

With respect to conduct that involves both advice and persuader activities, the Final Rule rejects the prior interpretation, pursuant to which the advice exemption would prevail, resulting in non-reportable conduct. Instead:

If the agreement or arrangement provide[s] that the consultant [will]engage in persuader services, among other services, the filer must explain the full fee arrangement for all services required by the agreement or arrangement and describe fully the persuader services, regardless of the duration or extent of the persuader services in relation to other services provided.²⁹

Application of Revised Rules to Attorneys

The Final Rule, which a federal district court in Texas enjoined on June 27, 2016, makes it clear that the revised rule applies to attorneys as well as lay consultants:

We have carefully reviewed comments submitted by the American Bar Association (ABA), other associations of attorneys, law firms representing employers, and other commenters, urging the Department to adopt an interpretation that would differentiate between attorneys and other labor relations consultants and essentially exempt attorneys from reporting any activities other than those in which they communicate directly with employees. Importantly, although the ABA sought to include a provision in the bill that became the LMRDA that would have achieved this result, Congress struck that provision from what became law. The commenters’ position has been rejected by the courts in cases where attorneys engaged in persuader activities unsuccessfully raised this privilege argument as a defense to their failure to report such activities. Moreover, the ABA and other commenters on this point have failed to advance any argument that attorneys who engage in the same activities as non-attorney consultants to counter union organizing campaigns—activities and circumstances significantly different from those typically involved with legal practice—should be able to avoid disclosing activities identical to those performed by their non-attorney colleagues in guiding employers through such campaigns.³⁰

However, the Final Rule also provides that it:

ensures that no reporting is required by reason of a consultant merely giving “advice” to the employer, such as, for example, when a consultant offers guidance on employer personnel policies and best practices, conducts a vulnerability assessment for an employer, conducts a survey of employees (other than a push survey, i.e., one designed to influence participants and thus undertaken with an object to persuade), counsels employer representatives on what they may lawfully say to employees, conducts a seminar without developing or assisting the employer in developing anti-union tactics or strategies, or makes a sales pitch to undertake persuader activities. Reporting is also not required for merely representing an employer in court or during collective bargaining, or otherwise providing legal services to an employer.³¹

Filing Form LM-10

Who Is Required to File

Under the Final Rule, an employer is required to file revised Form LM-10 if the employer made any agreement or arrangement with a labor relations consultant or other independent contractor or organization (Consultant) pursuant to which the Consultant undertook activities for the purpose of directly or indirectly: (1) persuading employees to exercise or not to exercise, or how to exercise, the right to organize and bargain collectively; or (2) furnishing the employer with information concerning activities of employees or of a labor organization in connection with a labor dispute in which the employer is involved.³²

What Must Be Disclosed

Among other things, the revised Form LM-10 requires disclosure of:

• The name and address (including e-mail address and Employer Identification Number) of the employer filing the form³³
• If different, the name and address (including e-mail address) of the CEO of the employer filing the form³⁴
• The name and address (including e-mail address) where records necessary to verify the report are maintained³⁵
• Legal status of the employer filing the report (individual, partnership, corporation, etc.)³⁶
• Whether services performed under the agreement are: (1) to persuade employees to exercise or not to exercise, or how to exercise, the right to organize and bargain collectively; or (2) to supply an employer with information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer³⁷
• The name, address (including e-mail address), and Employer Identification Number of the consultant party to the agreement³⁸
• Date of the agreement³⁹
• Terms and conditions of the agreement⁴⁰
• The types of activities performed or to be performed by the Consultant, including completion of the form’s itemized checklist⁴¹
• The period during which services under the agreement are to be performed⁴²
• “Extent performed”⁴³
• The name, address (including e-mail address), telephone number, and Employer Identification Number of any person or entity actually performing services under the agreement ⁴⁴
• A description of the group of employees to which the persuader activities under the agreement are aimed⁴⁵
• The labor organization representing or seeking to represent the employees⁴⁶
• The date of each payment under the agreement, including: the amount of payment; kind of payment (payment or loan, in cash or property); whether paid in form of a loan; and the full circumstances of the payment, including the terms of any oral agreement or understanding pursuant to which it was made⁴⁷

How and When to File

Form-LM 10 must be completed online, electronically signed, and submitted along with any required attachments to the Department using the OLMS Electronic Forms System (EFS).⁴⁸ It must be submitted within 90 days after the end of the employer’s fiscal year.⁴⁹

Filing the Form LM-20

Who Is Required to File

Pursuant the Final Rule, the Instructions to the revised Form LM-20 state that it must be filed by “[a]ny person who, as a direct or indirect party to any agreement or arrangement with an employer undertakes, pursuant to the agreement or arrangement,” any persuader activity.⁵⁰ A “person” includes, among others, labor relations consultants and other individuals and organizations. Further a person “undertakes” persuader activities not only when he/she performs the activity but also when he/she agrees to perform the activity or to have it performed.⁵¹

What Must Be Disclosed

Among other things, the revised Form LM-20 requires disclosure of:

• The name, address (including e-mail address), and Employer Identification Number of the consultant filing the report⁵²
• The name and address (including e-mail address) where records necessary to verify the report are maintained⁵³
• Fiscal year covered by the report ⁵⁴
• Legal status of the consultant filing the report (individual, partnership, corporation, etc.)⁵⁵
• The name, address (including e-mail address), and Employer Identification Number of the employer party to the agreement⁵⁶
• Date of the agreement⁵⁷
• Whether services performed under agreement are: (1) to persuade employees to exercise or not to exercise, or how to exercise, the right to organize and bargain collectively; or (2) to supply an employer with information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer, except information for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding ⁵⁸
• Terms and conditions of the agreement⁵⁹
• The types of activities performed or to be performed by the Consultant, including completion of the form’s itemized checklist⁶⁰
• The period during which services under the agreement are to be performed⁶¹
• “Extent performed”⁶²
• The name, address (including e-mail address), and Employer Identification Number of any person or entity actually performing services under the agreement⁶³
• A description of the group of employees to which the persuader activities under the agreement are aimed⁶⁴
• The labor organization representing or seeking to represent the employees⁶⁵

Form LM-20 does not, itself, require financial disclosure in connection with persuader activities. However, persons or entities required to file the LM-20 are also required to file Form LM-21 “Receipts and Disbursements Report.” That report is discussed in the next section.

How and When to File

Form-LM 20 must be completed online, electronically signed, and submitted along with any required attachments to the Department using the OLMS Electronic Forms System (EFS).⁶⁶ It must be submitted within 30 days after it is entered into.⁶⁷

Filing Form LM-21

Not directly addressed in the Final Rule, Form LM-21 is the financial disclosure report that must be filed by any person required to file Form LM-20.⁶⁸ The extent of disclosure required by the LM-21 (as presently written)⁶⁹ is vast and will prove enormously burdensome and objectionable to all filers.

The General Instructions for completing Form LM-21 with regard to receipts and disbursements⁷⁰ provide:

Receipts of any kind received directly or indirectly from employers on account of labor relations advice or services, and disbursements of any kind made directly or indirectly in connection with such services, must be reported with respect to each fiscal year during which payments were made or received as a result of any agreement or arrangement with an employer where the object is, directly or indirectly: (1) To persuade employees to exercise or not to exercise, or to persuade them as to the manner of exercising, the right to organize and bargain collectively through representatives of their choice or (2) To supply the employer with information concerning activities of employees or a labor organization in connection with a labor dispute involving such employer.

There is an exclusion for “agreements or arrangements that cover services relating exclusively to: (1) advising the employer; (2) representing the employer before any court, administrative agency, or tribunal of arbitration, and (3) engaging in collective bargaining on the employer’s behalf with respect to wages, hours, or other terms or conditions of employment or the negotiation of any agreement or any questions arising under the agreement.”⁷¹ However, the instructions also make clear that such exclusions are “applicable only to an agreement or arrangement which covers no [persuader] activities reportable . . . . If the agreement or arrangement provides for any [persuader] activity, you must report the information required for the entire agreement or arrangement.” In addition to financial disclosure of receipts related to labor relations advice and activities, Form LM-21 also requires detailed disclosure of any disbursements to persons performing services related to the agreement.⁷²

Most important, the Department of Labor takes the position, with the approval of the courts, that an attorney or consultant who engages in persuader activity for even one client “must then report for all labor clients—persuader or non-persuader—all receipts received from each of them on account of labor relation advice or services and disbursements of any kind—persuader or nonpersuader—in connection with such services.”⁷³

Challenges to the Final Rule

As of this writing two decisions in cases challenging the rule have been issued. In the first, Labnet, Inc. v. Perez,⁷⁴ the DOL narrowly escaped the imposition of an injunction prohibiting the DOL from enforcing the Final Rule. There, the U.S. District Court for the District of Minnesota concluded that “that portions of the new rule conflict with the LMRDA”⁷⁵ but refused to enjoin its enforcement because “it appears that the regulation’s potentially valid applications may outnumber its potentially invalid ones, and . . . there is only a minimal threat of irreparable harm.”⁷⁶

The DOL did not fare as well in National Federation of Independent Business v. Perez,⁷⁷ the second decision to consider the issue. There, the court enjoined enforcement of the Final Rule in its entirety, concluding that there was a substantial likelihood that the plaintiffs in that case would prevail on their claims: (1) that the Department lacked the statutory authority to promulgate the Rule;⁷⁸ (2) that the Rule is arbitrary, capricious, and an abuse of discretion;⁷⁹ (3) that the Rule violates free speech and association rights protected by the First Amendment;⁸⁰ (4) that the Rule is unconstitutionally vague in violation of the due process clause;⁸¹ and (5) that the Rule violates the Regulatory Flexibility Act.⁸²

With respect to the substantive issue, the court held (as had the Labnet court) that there was substantial likelihood that the Final Rule exceeded the Department’s statutory authority “by effectively eliminating the [LMRDA’s] Advice Exemption contrary to the plain text of Section 203(c).”⁸³ Unlike the court in Labnet, however, the court in National Federation concluded that the plaintiffs had met their burden of demonstrating the need for injunctive relief pending a decision on the merits. In this regard, it distinguished the decision in Labnet because of the difference in complaining parties (attorneys v. trade associations) and the fact that Labnet was decided on motion, without the benefit of an evidentiary hearing.⁸⁴

Consequences if the Final Rule is Enforced

If enforced, the Final Rule will drastically alter the cast of characters in representation case dramas. Few, if any, management attorneys who represent employers in these cases limit that representation to advice as defined in the Rule; almost all engage in conduct that constitutes reportable persuader activities. Employers will be sensitive to the public release of information regarding their expenditures for combatting a union organizational drive, but lawyers and law firms will be hypersensitive to the release of what most will view as confidential information regarding the identity of their clients and fees received from those clients.

Although the Final Rule portrays its demarcation of advice and persuader activities as a fairly simple, black-and-white determination, the real world actuality is quite different. For example, does informing an employer faced with an organizational drive that, under the National Labor Relations Act, it may permanently replace economic strikers, constitute legal advice or a persuader activity? Does it make a difference whether or not the attorney/consultant is aware that the client faces an organizational drive and intends to actively resist it? If an employer specifically requests an attorney to write a speech the employer intends to deliver to employees in order to make certain that the speech does not give rise to unfair labor practices, is the attorney rendering legal advice or engaging in persuader activities?

The court in Labnet had difficulty with the DOL’s position on this matter, observing

By starting with the premise that, if something is persuader activity, it cannot possibly be advice, DOL ends up struggling mightily to define as non-advice activity that any reasonable person would define as advice. And in the course of that struggle, DOL ends up drawing lines that are simply incoherent.⁸⁵

The court in National Federation agreed and enjoined enforcement of the Rule. It is clear that the fate of the Final Rule is far from settled and will most likely be resolved by the Supreme Court.

Pete Lareau is the author of NLRA: Law and Practice and numerous other books and articles in the field of labor law.

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Related Content

1. 29 U.S.C. § 433. 2. “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act,” 81 Fed. Reg. 15,924 (March 24, 2016) (hereinafter FR or Final Rule). 3. For a more detailed history of the interpretation  of the advice exemption see the Supplementary Information to the Final Rule, 81 Fed. Reg. 15,930-15,936. 4. FR, 81 Fed. Reg. 15,924. 5. “Labor-Management Reporting and Disclosure Act; Interpretation of the ‘Advice’ Exemption,” 76 Fed. Reg. 36,178 proposed June 21, 2011) (hereinafter “NPRM”). 6. For example, the checklist for both the revised form LM-10 and form LM-20 listed the following activities, among others, as triggering the reporting requirement: (1) “Drafting, revising, or providing written materials for presentation, dissemination or distribution to employees[;]” (2) “Drafting, revising, or providing a speech for presentation to employees[;]” and (3) “Developing personnel policies and practices[.]” 7. “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act,” 81 F.R. 15924 (Final Rule published March 24, 2016) (hereinafter Final Rule or FR). 8. NPRM, 76 Fed. Reg. 36,178. 9. NPRM, 76 Fed. Reg. 36,178. 10. 29 U.S.C. § 438. 11. 29 U.S.C. § 440. 12. 29 U.S.C. § 439. 13. 29 U.S.C. § 433(a). 14. 29 U.S.C. § 433(b). 15. 29 U.S.C. § 433(c). 16. Emphasis supplied. 17. 29 U.S.C. § 434. 18. FR, 81 Fed. Reg. 15,935. 19. FR, 81 Fed. Reg. 15,92415,925. 20. NPRM, 76 Fed. Reg. 36,178, 36,180 (quoting Benjamin Naumoff, Reporting Requirements under the Labor-Management Reporting and Disclosure Act, in Fourteenth Annual Proceedings of the New York University Conference on Labor 129, 140–141 (1961)). 21. FR, 81 Fed. Reg. 15,924, 15,935-36. 22. FR, 81 Fed. Reg. 15,924, 15,936. 23. NPRM, 76 Fed. Reg. 36,178, 36,181–182 (citing 66 FR at 18864); FR, 81 Fed. Reg. 15,923, 15,936. 24. FR, 81 Fed. Reg. 15,924, 15,926. 25. FR, 81 Fed. Reg. 15,924, 15,947. 26. FR, 81 Fed. Reg. 15,924, 15,944. 27. FR, 81 Fed. Reg. 15,923 15,924, 15,938. 28. FR, 81 Fed. Reg. 15,924, 16,027–28. 29. FR, 81 Fed. Reg. 15,924, 15,979. 30. FR, 81 Fed. Reg. 15,924, 15,928. 31. FR, 81 Fed. Reg. 15,924, 15,928. 32. Part C of LM-10 as revised by Final Rule. The LM-10 as revised is hereinafter referred to as Rev. LM-10). 33. Rev. LM-10, Item 3. 34. Rev. LM-10, Item 4. 35. Rev. LM-10, Item 5. 36. Rev. LM-10, Item 7. 37. Rev. LM-10, Part C. 38. Rev. LM-10, Item 12. 39. Rev. LM-10, Item 13.a. 40. Rev. LM-10, Item 13.b. In addition to a detailed description of the agreement, a copy of the agreement must be attached to the form. Rev. LM-10, Item 13.b. 41. Rev. LM-10, Item 14.a. 42. Rev. LM-10, Item 14.b. 43. Rev. LM-10, Item 14.c. It is not clear exactly what this means and the Instructions do not address the issue. 44. Rev. LM-10, Item 14.d. 45. Rev. LM-10, Item 14.e. 46. Rev. LM-10, Item 14.f. 47. Rev. LM- 10, Item 15.a-d. 48. Instructions to Rev. LM-10, Part VI How to File. 49. Instructions to Rev. LM-10, Part V When to File. 50. Rev. LM-20, Part II. The instructions to Rev. LM-20 make clear that “agreement or arrangement” is to be construed broadly and that such an agreement or arrangement may be written or oral. Rev. LM-20, Part II. 51. Rev. LM-20, Part II. 52. Rev. LM-20, Item 2. 53. Rev. LM-20, Item 3. 54. Rev. LM-20, Item 4. 55. Rev. LM-20, Item 5. 56. Rev. LM-20, Item 6. 57. Rev. LM-20, Item 7. 58. Rev. LM-20, Item 9. 59. Rev. LM-20, Item 10. In addition to a detailed description of the agreement, a copy of the agreement must be attached to the form. Rev. LM-20, Item 10. 60. Rev. LM-20, Item 11.a. 61. Rev. LM-20, Item 11.b. 62. Rev. LM-20, Item 11.c. It is not clear exactly what this means and the Instructions do not address the issue. 63. Rev. LM-20, Item 11.d. 64. Rev. LM-20, Item 12.a. 65. Rev. LM-10, Item 12.b. 66. Instructions to Rev. LM-20, Part VI How to File. 67. Instructions to Rev. LM-20, Part V When to File. 68. Instructions to Rev. LM-20, Part III What Must Be Reported 69. Revision of Form LM-21 is currently a subject of rulemaking by the Department of Labor, as set out in the DOL’s “Semiannual Unified Agenda and Regulatory Plan,” The DOL has estimated that a proposed rule on the Form LM–21 will be published in September 2016. FR, 81 Fed. Reg. 15,992, n.88. 70. Instructions to Form LM-21, Part IX.A.4 (emphasis supplied). 71. Instructions to Form LM-21, Part IX.A.4. 72. Instructions to Form LM-21, Part IX.C.7. 73. Price v. Wirtz, 412 F.2d 647, 649 (5th Cir. 1969) (emphasis supplied; citing Douglas v. Wirtz, 353 F.2d 30 (4th Cir. 1965), cert. denied, 383 U.S. 909 (1966). 74. 2016 U.S. Dist. LEXIS 81884 (D. Minn. June 22, 2016). 75. 2016 U.S. Dist. LEXIS 81884, at *1. 76. 2016 U.S. Dist. LEXIS 81884, at *38. 77. National Federation of Independent Business v. Perez, No. 5:16-cv-00066-C (N.D. Tex. June 27, 2016) (hereinafter “National Federation”). 78. National Federation at 45–51. 79. National Federation at 51–56. 80. National Federation at 56–64. 81. National Federation at 64–68. 82. National Federation at 68–71. 83. National Federation at 68–71. 84. National Federation at 82 n.14. 85. 2016 U.S. Dist. LEXIS 81884 at *45.