Thursday, August 2, 2018

Goodbye Persuader Rule

Last month the U.S. Department of Labor officially rescinded the pro-union persuader rule enacted during the Obama era. The persuader rule required employers and any consultants, including legal assistance, to publicly disclose certain information. The rule included mandatory disclosure of firstly, the identity of any outside lawyer or consultant working with an employer who was seeking to impact the decision to unionize; secondly, the goals, terms, and conditions of any such arrangement; and finally, any activities either performed, or to be performed in the future, by the consultant.

The rule was first introduced in March 2016, but due to challenges beginning only one month later, was never fully implemented. The National Federation of Independent Business was joined by four business groups to make this first challenge to the rule, arguing that it interfered with both the employer’s right to get confidential legal advice and the employer’s right to communicate with workers regarding unions. By November 2016, ten states had joined the fight against the persuader rule, resulting in the issuance of a permanent injunction blocking the rule. U.S. District Judge Sam R. Cummings stated that the law created a greater possibility of injury to plaintiffs that outweigh any potential harm. Judge Cummings elaborates that the agency’s treatment of advice and persuasive activities as mutually exclusive in the rule renders it “entirely superfluous.” Cummings continues by stating that the DOL improperly exempted all advice except that which has an object to persuade.

Now, almost two years later, the U.S. Labor Department agrees that the rule impinges on attorney-client privilege. The agency states that the rule would make confidential information required as part of the disclosures. The DOL published a notice of proposed rulemaking offering the reasons for the proposed rescission. This notice includes the agency’s desire to consider more important effects that the rule had on the regulated parties, to address concerns raised by reviewing courts, to look at the substantial burden created by the rule’s disclosure requirements, and for the agency to take into account the effects resulting from the rule on attorneys and employers seeking legal assistance.

The persuader rule applied only to those employers covered by the National Labor Relations Act. Illinois public employers must adhere to restrictions under the Illinois Public Labor Relations Act or the Illinois Educational Labor Relations Act; both of which prohibit the spending of public funds, except on legal counsel, for counter unionizing campaigns.