Texas Court Declares DOL's Persuader Rule Unlawful And Makes Nationwide Injunction Permanent

Volume 15, Issue 25
November 17, 2016

National Labor Relations Board The Labor-Management Reporting and Disclosure Act ("LMRDA") has long required employers, labor relations consultants and attorneys to report to the Department of Labor ("DOL") certain "persuader activity" - actions undertaken to persuade employees not to vote for a union. Previously, no report was required if the activity constituted "advice" and the lawyer or consultant did not deal directly with the employees. In March of 2016, however, the DOL issued a reinterpretation of its persuader rule that effectively eliminated the advice safeguard by requiring disclosure to the DOL of the attorney-client relationship and attorney work product if labor counsel develops new policies, conducts training for supervisors, provides its client with materials to disseminate to employees, or helps plan or coordinate the employer's activities.

Three lawsuits were quickly filed to challenge the DOL's harmful reinterpretation of the persuader rule, one of which was filed by Kamer Zucker Abbott in conjunction with Worklaw© Network. Another of these lawsuits, filed by the National Federation of Independent Business, is pending in federal court in the Northern District of Texas. You may remember that in late June, the Texas court granted a nationwide preliminary injunction against the DOL, forcing it to refrain from implementing "any and all aspects" of the persuader rule until a further order of the court.

That further order arrived yesterday. The Texas court ruled that the persuader rule is unlawful and that the injunction is now permanent. To read the Texas court's brief order, please click here.

Although the DOL has appealed the court's initial ruling, the judge's order yesterday remains a clear victory for employers. We will keep you posted on further developments in this area as we look to see how the incoming Trump administration impacts the DOL generally and this issue specifically.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.