Subpoenas 101

Enforcement agencies across federal and state governments rely on voluntary compliance with the laws they enforce. For the most part, people and entities subject to agency regulation comply with the law. But there are times when they don’t, and when credible allegations of noncompliance come to an enforcement agency’s attention, the agency has the responsibility and the authority to investigate the allegation and enforce the laws they are charged with enforcing.

The Department of Labor’s Office of Labor-Management Standards is no exception. We enforce the Labor-Management Reporting and Disclosure Act, a statute Congress enacted in 1959 to advance the national policy favoring employee self-organizing and collective bargaining by, among other activities, ensuring transparency in the finances of labor unions and aspects of employer and labor relations consultant efforts to persuade employees concerning their organizing rights. We do that, in part, by requiring unions to file annual financial reports (Forms LM-2, 3 and 4), employers to file annual reports when they engage in reportable activities (Form LM-10), and consultants to file contemporaneous and annual reports regarding these same activities (Forms LM-20 and 21).

When we have reason to believe that unions, employers or consultants haven’t filed required reports, or when they do and we have reason to believe that their filings are deficient, we engage in compliance assistance to try to achieve voluntarily the transparency called for by the LMRDA. But when compliance assistance does not achieve this transparency, OLMS has investigative tools that it can and does use to enforce the act.

Section 210 of the LMRDA authorizes the secretary of labor to bring a civil action when it “appear[s] that any person has violated or is about to violate any of the provisions of” the LMRDA’s reporting requirements (and section 209 makes a willful violation of the statute criminal). As part of the toolbox for investigating whether a civil or criminal action is appropriate, Section 601 of the LMRDA provides that:

The Secretary shall have power when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this [Act] . . . to make an investigation and in connection therewith he may . . . inspect such records and accounts and question such persons as he may deem necessary to enable him to determine the facts relative thereto.

The statute goes on to grant to the secretary of labor the subpoena power provided in the Federal Trade Commission Act to review, copy and, when appropriate, take originals of any written document or compel the testimony of any person “relating to any matter under investigation.” These subpoenas are enforceable in the district courts.

Given the clarity and breadth of the secretary’s subpoena power, OLMS historically has not issued subpoenas extensively in connection with OLMS investigations. But in the rare instances when people or entities fail to comply with agency requests, we do issue subpoenas. And in the even rarer instances when a person or entity has not complied with a subpoena, the district courts have enforced those subpoenas. The most recent example of judicial enforcement of OLMS subpoenas in the transparency arena came on Oct. 4, 2023, when the U.S. District Court for the Western District of Washington enforced an OLMS subpoena issued to Starbucks in connection with our investigation of whether Starbucks is required to file an LM-10 report.

While the LMRDA’s reporting requirements are directed to unions, employers, labor relations consultants and surety companies, OLMS has historically devoted less of its enforcement activities toward employers and consultants than it has toward unions. But as I explained in an earlier blog post, there is an “M” in LMRDA for a reason. This is an example of OLMS breathing life into the “M” every day, by focusing much more attention on delinquencies and deficiencies in employer and consultant reporting than we have in the past. We hope that we will get full cooperation from all individuals, unions, employers and consultants in complying with the LMRDA, but if we do not, we have tools in our toolbox to enforce the law.

Jeffrey Freund is the director of the Office of Labor-Management Standards.