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eLABORate: Texas Judge Blocks DOL's 'Persuader' Rule

June 28, 2016

A Texas federal judge entered a nationwide injunction yesterday, barring the U.S. Department of Labor ("DOL") from enforcing its "persuader" rule. According to U.S. District Judge Sam R. Cummings, the persuader rule threatens employers' rights to secure legal advice about union organization.

The court determined the DOL likely exceeded its authority by establishing the persuader rule, which requires employment lawyers and other labor consultants to disclose the nature of "persuader activities" undertaken with employers. In essence, the court determined that the rule undermines the attorney-client relationship and unreasonably conflicts with state rules that require lawyers to keep client information confidential.

Although the DOL previously excluded attorneys and other consultants from having to disclose their union campaign assistance to employers under the Labor Management Reporting and Disclosure Act ("LMRDA"), a rule change proposed in 2011 dismantled that exclusion. The court determined that "the new rule is defective to its core because it entirely eliminates the LMRDA's advice exemption."

Critically, with respect to First and Fifth Amendment Constitutional concerns, the court found that the DOL interpretation imposes a content-based burden on speech about union organizing, and that the rule is unconstitutionally vague.

From more information concerning the DOL persuader rule, contact Brandon E. Davis at brandon.davis@phelps.com.