One thing is clear about Secretary of Labor Thomas Perez: He interprets laws creatively to give himself the widest possible latitude in using the powers of his office. He showed this as the assistant attorney general for civil rights with his fondness for a particularly expansive concept of "disparate impact" theory, the view that intent is not required to prove discrimination.
With that in mind, as well as Perez's rabidly pro-union outlook, here's what to expect when the Labor Department releases its "persuader" rule in November: Under Perez, the rule could be used effectively as a pretext to stop most, if not all, labor law attorneys from advising management. Under current law, companies must disclose when they hire labor law consultants during workplace organizing drives, who they are, how much they are being paid and so forth.
This rule only kicks in if the consultant has any direct contact with the employees. This typically means when the consultant tells employees why joining a union may not be in their best interest. That's why it is called "the persuader rule." But there are other consultants who merely explain the law to employers and nothing else. Small business owners in particular are likely to need this help. Most of these managers take care of talking to employees themselves.
The new rule would require all businesses to divulge information on literally anyone "who explicitly or implicitly, influence[s] the decisions of employees." Under Perez, the government would interpret this already over-broad law even more expansively, forcing employers to divulge contracts with consultant groups only tangentially involved in organizing campaigns.
The large consultant groups that represent big business would be minimally affected, since they mostly disclose their involvement under the current laws. It's the smaller firms that would fear being targeted by unions under the new rules. Most would likely get out of the business altogether, leaving small businesses with fewer options to learn the laws and regulations. Such a result would tilt the playing field significant in favor of unions.
This would obviously suit Perez and Big Labor just fine. It would suit the bigger consultant groups too, since it would squeeze out smaller competitors. Even those businesses who stick it out would be forced to file reports on any labor law contact -- creating a whole new avenue of attack for unions seeking to harass management and consultants. For example, under the new rule, a business owner who merely calls up a friend with a law degree to get a referral for a labor law expert would have to disclose that call or face potential criminal penalty.
Such bureaucratic and legal harassment is the point of expanding the rule in the first place. It does nothing to prevent corruption, ensure workers' rights or otherwise improve the lot of employees. It is just there to add paperwork burdens and fear of prosecution on consultants and the businesses that hire them. The persuader rule is only the beginning of what a determined liberal crusader like Perez will do.