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DOL Rescinds Persuader Rule

Volume 17, Issue 15
July 23, 2018

On July 17, 2018, the U.S. Department of Labor (DOL) announced that it has rescinded the "2016 Persuader Rule." You may remember that this rule related to the Labor-Management Reporting and Disclosure Act's (LMRDA) requirement that employers, labor relations consultants and attorneys report to the DOL certain "persuader activity" - actions undertaken to persuade employees not to vote for a union. No report was required, however, if the activity constituted "advice" and the lawyer or consultant did not deal directly with the employees. The 2016 Persuader Rule effectively eliminated the advice safeguard by requiring disclosure 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. Several lawsuits were filed against the DOL because of the 2016 Rule (including one joined by KZA), and a federal judge in one of those lawsuits stayed the DOL's enforcement of the Rule.

Under the Trump administration, the DOL has ended the battle, agreeing with the plaintiffs that the 2016 Persuader Rule exceeded the authority of the LMRDA and "impinged on attorney-client privilege." The DOL will return to using the reporting requirements that were previously in effect before the 2016 Rule. The Office of Policy's Deputy Assistant Secretary Nathan Mehrens remarked: "By rescinding this Rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government."

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.