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New DOL “Persuader Rule” Put on Hold

June 28, 2016

Yesterday, a federal district court in Texas issued a preliminary injunction halting the national application of the Department of Labor’s (“DOL”) new “Persuader Rules,” which would have required employers and their attorneys to file public reports showing that they had engaged in certain union avoidance activities. In support of its holding, the court found that the rules were flawed in many respects, so much so that a nationwide injunction preventing implementation of the new rules was necessary. Last week, a federal court in Minnesota similarly held that the rules were flawed, but that court declined to issue an injunction.

Currently, parties are required to report services involving attorney or consultant face-to-face communications with employees, and most attorneys have refrained from engaging in those direct communications to avoid the reporting obligation. Under the new rules, both the employer and the attorneys/consultants would have had to file reports with the DOL disclosing the type of union avoidance activities in which they were engaged and the related fees for those services. Among the many concerns with the proposed rules was the DOL’s view that certain services commonly offered by attorneys, including supervisor training and advice related to various employment-related policies, would need to be identified on the reports, which are available for public viewing through the DOL’s website.

As drafted, the new rules would not have applied to agreements between employers and attorneys/consultants to engage in persuader activities entered into before July 1st. Although the current injunction prevents the rules from going into effect at this time, a different result is possible following trial and appeal(s). In the face of this uncertainty, employers may still wish to take advantage of the limited window available to avoid possible future reporting of activities identified in the new rules by entering into an agreement with attorneys/consultants prior to July 1st.

For more information on this matter, please contact Ray Bissmeyer (210-554-5589, rbissmeyer@dykema.com), Rob Boonin (313-568-6707, rboonin@dykema.com), Jim Hermon (313-568-6540, jhermon@dykema.com), Donna McElroy (210-554-5272, dmcelroy@dykema.com), any member of Dykema’s Labor & Employment Law Group, or your relationship attorney.

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