DOL Revokes Obama-era "Persuader Rule"

Author: Robert S. Teachout, XpertHR Legal Editor

July 19, 2018

The Department of Labor DOL) has rescinded a rule that would have greatly expanded the types of activity an employer must report under the Labor Management Reporting and Disclosure Act (LMRDA). The "Persuader Rule" is the latest Obama-era rule to be reversed by the Trump administration.

The LMRDA requires employers, attorneys and labor relations consultants to file reports about persuader activity - activity engaged in to persuade employees concerning their rights to organize and collectively bargain. The requirement generally applies to situations in which an attorney or consultant - a persuader - communicates or otherwise deals directly with employees during a union organizing campaign in an effort to persuade them not to support the union.

The 2016 rule issued by the Obama DOL would have expanded an employer's obligation to report persuader activity to include "behind the scenes," indirect persuader activity. This included activities like drafting communications to be sent to employees, as well as manager talking points, which had fallen under the "advice exemption" of the LMRDA. The Persuader Rule was immediately challenged in court, and a federal district court permanently enjoined the DOL from implementing and enforcing the rule in November 2016.

As part of the Trump administration's deregulation strategy, the DOL in July 2017 issued a Notice of Proposed Rulemaking to rescind the rule and this week issued the final rule revoking the rule effective August 17, 2018. Among the reasons stated for repealing the rule was its "interference with longstanding protections of the attorney-client relationship."