DOL Barred From Forcing Employers To Report Labor Relations Advice Under Persuader Rule Injunction

November 18, 2016

Employers paying lawyers or other labor relations consultants for advice or help deterring or responding to unionization organizing activities do not have comply with the controversial “Persuader Rule” reporting and disclosure requirements the Department Of Labor (DOL) tried to impose as part of the Obama Administration’s broader aggressive efforts to empower unions and worker organizing efforts.  That’s the effect of U.S. District Court Justice Sam Cummings’ November 16, 2016 National Federation of Independent Business v. Perez decision striking down as invalid and permanently enjoining the DOL from enforcing its regulation officially titled “Interpretation  of  the  ‘Advice’  Exemption  in  Section  203(c)  of  the  Labor-Management  Reporting  and  Disclosure  Act,” commonly referred to as the “Persuader Rule.”

Before DOL adopted the Persuader Rule, there was no requirement to when lawyers or consultants spoke with or advised employers about opposition to union efforts unless the consultant had direct contact with workers.  As revised by the Obama Administration, however, the Persuader Rule required employers and consultants—including lawyers—to report both direct contact with workers as well as advice or other help provided to employers by lawyers or consultants about persuading employees on union issues such as training supervisors or employer representatives to conduct meetings; coordinating or directing the activities of supervisors or employer representatives; establishing or facilitating employee committees; drafting, revising or providing speeches; conducting union avoidance seminars; developing or implementing employer personnel policies; involvement in disciplinary action, reward, or other targeting of workers; or various other activities designed to influence union organization matters.

Scheduled to take effect in July, 2016, DOL’s implementation and enforcement of the Persuader Rule originally was delayed by a June 27, 2016 preliminary injunction issued by Justice Cummings that nationally enjoined DOL from implementing any and all aspects of the Persuader Rule based on his findings, among other things, that the plaintiffs likely would succeed on the merits in showing the Persuader Rule:

  • Violated their right to hire and consult with an attorney, free speech, expression and association rights protected by the First Amendment;
  • Was overly broad and unacceptably vague;
  • Violated the Regulatory Flexibility Act; and
  • Would irreparably harm employers.

After a hearing on the merits, Justice Cummings ruled that the June, 2016 injunction should be made permanent.  His November 16, 2016 final order in National Federation of Independent Business v. Perez, permanently enjoins DOL from implementing the Persuader Rule nationwide.  Accordingly, employers and their labor attorneys and other labor management consultants are excused from responsibility to comply with the reporting requirements of the Persuader Rule.

About The Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,”“Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for work, teachings and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares shared her thought leadership, experience and advocacy on these and other concerns by her service in the leadership of a broad range of other professional and civic organization including her involvement as the Vice Chair of the North Texas Healthcare Compliance Association, Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Board Compliance Chair and Board member of the National Kidney Foundation of North Texas, current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative and current RPTE Representative to the ABA Health Law Coordinating Council, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.

Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment, employee benefits, compensation, and other regulatory and operational risk management. Examples of her many highly regarded publications on these matters include the “Texas Payday Law” Chapter of Texas Employment Law, as well as thousands of other publications, programs and workshops these and other concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see CynthiaStamer.com  or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at SolutionsLawPress.com such as:

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©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.  All other rights reserved.


DOL Employer & Employee Benefit Fines Going Up

July 1, 2016

Employers, employee benefit plan fiduciaries and others caught violating Federal employment, employee benefit, and a wide range of other laws and regulations ranging from the Fair Labor Standards Act (FLSA) to the Employee Retirement Income Security Act (ERISA),  and many other Federal Labor and employment laws should brace for increased civil penalties and other changes in the calculation of these penalties under interium rules just released by the DOL.  Employers and other parties must comply with these rules but if concerned with these Interium Rules, will have 45 days to comment before DOL will publish  any final rule.

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act, which requires the Department of Labor (DOL) and other agencies adjust their penalties for inflation each year.
In response to this mandate, the DOL has published two interim final rules to adjust its penalties for inflation effective August 1:

Both rules define rules that DOL plans to use to apply the 2015 Inflation Adjustment Act’s formula on how to determine the proper adjustment for each penalty effective August 1, 2016 to civil penalties that DOL can assess against employers for violations.

The new method will adjust penalties for inflation, though the amount of the increase is capped at 150 percent of the existing penalty amount. The baseline is the last increase other than for inflation. The new civil penalty amounts are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after Nov. 2, 2015.

The rules published under the 2015 law will increase some penalties that DOL perceives have lost ground to inflation including:

  • OSHA’s maximum penalties, which have not been raised since 1990, will increase by 78 percent. The top penalty for serious violations will rise from $7,000 to $12,471. The maximum penalty for willful or repeated violations will increase from $70,000 to $124,709.
  • OWCP’s penalty for failure to report termination of payments made under the Longshore and Harbor Workers’ Compensation Act, has only increased $10 since 1927, and will rise from $110 to $275.
  • WHD’s penalty for willful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894.

A list of each agency’s individual penalty adjustments is available here.

In addition to increasing its civil penalties, the DOL has indicated that in response to these changes, it will update the  FLSA Minimum Wage Poster and other required labor posters before the August 1, 2016 effective date.

Since these  impending increases raise the civil penalty exposures for employers in the most heavily enforced by the DOL, employers now have an even greater need to tighten their compliance and risk management practices under these laws.

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Tax: Erisa & Employee Benefits” and “Health Care” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, a former ABA Joint Committee on Employee Benefits Council Representative and , Ms. Stamer helps management manage.

Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer serves on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and as an editorial advisor and contributing author of many other publications. Her leadership involvements with the American Bar Association (ABA) include year’s serving many years as a Joint Committee on Employee Benefits Council representative; ABA RPTE Section current Practice Management Vice Chair and Substantive Groups & Committees Committee Member, RPTE Employee Benefits & Other Compensation Committee Past Group Chair and Diversity Award Recipient, current Defined Contribution Plans Committee Co-Chair, and past Welfare Benefit Plans Committee Chair Co-Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; International Section Life Sciences Committee Policy Vice Chair; and a speaker, contributing author, comment chair and contributor to numerous Labor, Tax, RPTE, Health Law, TIPS, International and other Section publications, programs and task forces. Other selected service involvements of note include Vice President of the North Texas Healthcare Compliance Professionals Association; past EO Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a former Southwest Benefits Association Board of Directors member, Continuing Education Chair and Treasurer; former Texas Association of Business BACPAC Committee Member, Executive Committee member, Regional Chair and Dallas Chapter Chair; former Society of Human Resources Region 4 Chair and Consultants Forum Board Member and Dallas HR Public Policy Committee Chair; former National Board Member and Dallas Chapter President of Web Network of Benefit Professionals; former Dallas Business League President and others. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal control and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at Solutionslawpress.com including:

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  • Employers, Insurers & TPAS: Budget Time, $ For 2017 Summary of Benefits and Coverage Updates
  • Expect New Fed Regs To Increase Childcare Costs
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  • DOL “Persuader Rule” Changes Broaden Employer & Consultant Anti-Union Contract Disclosure Duties
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  • Marketplace Data Deficiencies Signal Employer ACA Headaches
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If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc. ™. All other rights reserved.


DOL “Persuader Rule” Changes Broaden Employer & Consultant Anti-Union Contract Disclosure Duties

March 23, 2016

By: Cynthia Marcotte Stamer

The Obama Administration is moving forward on yet another effort to empower union organizing efforts and disempower employer efforts to fight union organization efforts by changing its regulations implementing the “persuader rule” of the Labor-Management Reporting and Disclosure Act (LMRDA) to expand the circumstances under which the Labor Department’s “persuader rule” requires employers to disclose arrangements made with consultants to assist the employer to oppose union efforts by filing the Form LM-10 (employer report) and consultants providing anti-union services to file the Form LM-20 (agreement and activities report). See DOL persuader rule Fact Sheet, Overview/Summary and a Question and Answers.  Employers, consultants and others involved in labor-management relations management or training will want to review and update their risk management and compliance practices in light of this impending change.

Current U.S. Department of Labor Office of Labor-Management Standards (Labor Department) regulations implementing Section 203 of the Labor-Management Reporting Disclosure Act (LMRDA) generally require employers and labor relations consultants to with the U.S. Department of Labor’s Office of Labor-Management Standards (OLMS) a Form LM-10 Employer Report, Form LM-20 Agreement and Activities Report, and Form LM-21 Receipts and Disbursements Report whenever the employer and the consultant enter into an agreement or arrangement for the consultant directly to undertake activities with either of the following objectives:

  • To persuade employees about exercising their rights to organize and bargain collectively or
  • To supply an employer with certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.

Employer Report Form LM-10

Specifically, Labor Department Regulations generally require employers to report by filing with the Labor Department the Form LM-10 if they make certain expenditures or engage in certain activities, including entering into agreements or arrangements with any third party consultant, to persuade employees concerning their collective bargaining or organizing rights or to obtain certain information. Employers currently are not required to file Form LM-10 reports covering attendance at union avoidance seminars, though consultants who present at these seminars must file LM-20 reports, however. The Form LM-10 must be signed by the president and the treasurer or corresponding principal officers of the reporting employer, or by the sole proprietor, as appropriate. Employers also should be aware that Labor Department rules also require employers to report other items not related to persuader activities or expenditures on Form LM-10. Pursuant to LMRDA Section 203(a), employers must also file the Form LM-10 to report certain payments to unions and individuals affiliated with unions, including any officer, employee, shop steward, or agent of a labor organization. There are exceptions to the filing requirements, and these are noted in the Form LM-10 instructions. The Form LM-10 report must be filed electronically within 90 days after the end of the employer’s fiscal year. Employers are required to file only one Form LM-10 report each fiscal year covering all instances of reportable activity even if, for example, activity occurs at multiple locations or the employer enters into more than one consultant agreement

Consultant Report Form LM-20 and 21

In addition to the employer reporting requirements, Labor Department implementing rules for Section 203(b) requires any person, including a labor relations consultant, to file a report, Form LM-20, to disclose agreements or arrangements with any employer pursuant to which the person undertakes activities with the intent to persuade employees concerning their collective bargaining or organizing rights or to obtain certain information. The required LM-20 report is due within 30 days after entering into a reportable agreement, except for reports covering union avoidance seminars, which are due 30 days after the conclusion of the seminar.  Such individuals or organizations must file a separate Form LM-20 for each agreement or arrangement they make with an employer, and attach a copy of any written agreement. The report must be signed by the president and the treasurer or corresponding principal officers of the consultant firm or, if the filer is self-employed, by the individual consultant.

Broadening Of Actions Subject To Persuader Rule

Presently, the Labor Department generally only required reporting of an employer-consultant agreement only if the consultant communicated directly to the workers. Under the new “persuader rule” scheduled for publication in the March 24, 2016 Federal Register, however, the Labor Department will expand the duty to report to include both direct communications and other “indirect” activities by a consultant to assist an employer with anti-union efforts.

As amended by the persuader rule, Labor Department regulations generally will require employers and their consultants to file the Form LM-10 employer report and the Form LM-20 agreement and activities report disclosing an anti-union employer-consultant agreement whenever a consultant engages “any actions, conduct, or communications 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.” The final persuader rule scheduled for publication on March 24, 2016 also will provide that consultant activities that trigger reporting include direct contact with employees with an object to persuade them as well as the following categories of indirect consultant activity:

  • Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees;
  • Providing materials or communications for dissemination to employees;
  • Conducting a union avoidance seminar for supervisors or other employer representatives; and
  • Developing or implementing personnel policies, practices, or actions for the employer.

Prepare To Meet Broadened Requirements

Following its publication in the March 24, Federal Register, the persuader rule is scheduled to take effect on April 25, 2016 and apply to arrangements, agreements, and payments made on or after July 1, 2016.

The Labor Department’s final adoption of the persuader rule tomorrow comes despite widespread criticism by employers, management consultants and many management legal counsels as overly broad and potentially infringing on management’s attorney-client privilege rights with respect to advice provided by legal counsel to management. As a result of these and other concerns, most commentators expect the changes to the persuader rule to face widespread challenges in the courts.

Whether or not these challenges materialize, employers as well as consultants and legal counsel involved in anti-union organization efforts will need to carefully evaluate the revised reporting requirements to take into account the persuader rule’s expansion to the reporting requirements. Employers anticipating potential union activity or training and the lawyers and labor consultants and labor-management educators providing or offering services will want to carefully evaluate the changes and modify practices in light of the impending changes to the rule.

About The Author

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 30- year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see CynthiaStamer.com or StamerChadwickSoefje.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

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41614421-modified-one-way-signs-indicating-management-and-labor


Congress Passess Joint Resolution Overturning NLRB “Quickie Election Rule”

March 27, 2015

The new Republican Majority in Congress is moving quickly to attack and overturn a series of pro-union rules implemented under the leadership of the Obama Administration. Today, for instance, a Joint Resolution that seeks to invalidate the National Labor Relations Board (NLRB) “election now, hearing later” “quickie election rule” was presented for signatures to President Obama.

Passed by the Senate March 4, 2015 and the House on March 19, 2017 and presented to the President on March 27, 2015, S.J.Res.8 provides Congressional disapproval of, and specifies that the quickie election rule is to have no force and effect on union representation case procedures.

Adopted by the NLRB December 12, 2014 at 79 Fed. Reg. 74308 (Dec. 15, 2014), the quickie election rule would make it more difficult for employers to oppose union organizing elections by subjecting employers to what some commentators refer to as “ambush elections.” The procedural changes to NLRB election procedures implemented by the quickie election rule place employers at a significant disadvantage when faced with a union demand for an election,

Incorporating most of the procedures contained in a 2011 NLRB proposal previously invalidated by the District of Columbia’s district court in Chamber of Commerce of the United States v. NLRB, 879 F. Supp. 2d 18, 21, 25, 30 (D.D.C. 2012), the quickie election rule as finalized by the NLRB among other things requires that:

  • Union elections generally be held within 10 to 21 days after the petition filing, rather than the previous rule’s 42 days;
  • Any pre-election hearings occur eight days after the petition filing;
  • Employers to file before the pre-election hearing a position statement addressing threshold issues such as unit appropriateness, bargaining unit exclusions, and the proposed date, time and location of the election;
  • Scheduling of post-election hearings 14 days after the filing of objections;
  • Employers seeking a pre-election hearing to provide the union with two lists identifying employees in the challenged petitioned-for unit and in what the employer argues is the appropriate unit;
  • Within two days after the unit is decided, the employer to provide an electronic list of employees including names, addresses, phone numbers, work locations and classifications. Employees’ personal phone numbers and email addresses must be provided if available to employer.
  • Once a union is certified, barring employees from seeking to decertify the election until the later of one year or the expiration of the first collective bargaining agreement.
  • At the pre-election hearing, the parties generally to litigate issues necessary to determine the appropriateness of conducting an election but allowing deferral of the decision of certain eligibility and inclusion issues decided by an NLRB regional director until the post-election stage.

The Joint Resolution to overturn the quickie election rule is part of an ongoing battle between Republicans, who following the November 2014 elections now hold a slim majority of the seats in both the House and Senate, and President Obama and Congressional Democrats, who since Mr. Obama’s election have acted aggressively to promote and expand union rights and safeguards. Since the November, 2014 elections, President Obama has promised to act aggressively to continue to promote pro-union and other policies opposed by Republications by executive order, rulemaking, veto and enforcement authority. Look for more battles over these and other contested policies in the months ahead.

For Help or More Information

Cynthia Marcotte Stamer is recognized among the “Top Rated” Labor & Employment Lawyers in Texas in the 2014 LexisNexis® Martindale-Hubbell® list of Top Rated Lawyers.  An AV® Preeminent™ (the highest Peer Review Rating available) rated lawyer, Ms. Stamer earned the “Top Rated” Distinction based on confidential Martindale-Hubbell Peer Review Ratings opinions about her skills and experience submitted by other AV® Preeminent™ lawyers and members with professional knowledge of her work.

A noted Texas-based management lawyer and consultant, author, lecturer and policy advocate, Ms. Stamer is nationally and internationally known for her innovative leadership and work helping businesses, governments, and communities manage workforce and other performance and other labor and employment, employee benefits and workforce related challenges

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization,  and a Fellow in the American Bar Association, Texas Bar Association, and the American College of Employee Benefit Counsel,  Ms. Stamer’s legal and management consulting work focuses on helping employers, insurers, employee benefit plans and their administrators, fiduciaries and advisors, community leaders and governments manage people, process and risk.   Throughout her more than 26 year career,

Ms. Stamer has helped management deal with all aspects of human resources and workforce management, including employment and outsourcing contracting and performance management, reengineering and other change management, internal controls, compliance and risk management, compensation and employee benefits, communications, worker classification, tax, government relations, enforcement and litigation defense, and other related matters.  Drawing upon her extensive knowledge base of knowledge and wealth of practical skills, Ms. Stamer helps businesses and their leaders manage their employees and other workers and service providers, their performance, compliance, compensation, benefits, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and operations crises large and small that arise in the course of operations.

In addition to her more traditional legal, internal controls and other management consulting work, Ms. Stamer also extensively works with a broad range of business and government clients on health care, pension, social security, workforce, insurance and many other related policy matters critical to their business success and liability management. She both only helps her clients anticipate, monitor and cope with emerging laws, regulations and enforcement and respond to and resolve government investigations and enforcement actions, she also helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally.  A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American College of Employee Benefit Counsel, the American Bar Association (ABA) and the State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting.  She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA,HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. She also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Beyond these involvements, Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves as Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Committee and its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its representative to the ABA Joint Committee on Employee Benefits; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division and as a faculty member, editorial advisory board member, speaker and author for numerous human resources, employee benefits, insurance, technology and data security and other professional associations, programs, and publications.  She previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early retirement intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of the Cynthia Marcotte Stamer, PC here.

©2015 Cynthia Marcotte Stamer. Limited, non-exclusive right to republished granted to Solutions Law Press, Inc. All other rights reserved.