DOL's "Persuader Activity" Rule Stopped

Author: Michael Cardman, XpertHR Legal Editor

November 18, 2016

A new rule from the US Department of Labor (DOL) that would have expanded an employer's obligation under the Labor Management Reporting and Disclosure Act (LMRDA) to report persuader activity - activity engaged in to directly or indirectly persuade employees concerning their rights to organize and collectively bargain - appears to be on its last legs.

The US District Court for the Northern District of Texas on November 16 issued an injunction to permanently prevent the DOL from implementing the new rule.

Several pro-employer groups, led by the National Federation of Independent Business, had filed a lawsuit against the DOL earlier this year seeking to overturn the rule. In June, the court agreed to temporarily halt implementation of the rule because, it said, the plaintiffs were likely to succeed in their lawsuit on the grounds that the DOL exceeded its authority in issuing the final rule.

The DOL appealed that temporary order to the 5th US Circuit Court of Appeals. But it remains to be seen whether the agency will appeal the more recent, permanent injunction now that Donald Trump has been elected president.

The LMRDA already requires disclosure but, historically, it has applied only narrowly to direct contact by attorneys or labor consultants with employees to persuade them not to unionize or collectively bargain. Under the advice exemption, the LMRDA has not applied to attorneys or consultants providing legal advice to employers about their federal labor law rights and duties, if the employer could freely accept or reject the advice and the attorney did not communicate directly with employees.

The new rule, however, would have required employers, attorneys and other labor consultants to electronically file reports with the DOL disclosing indirect persuader activity as well as direct activity.