Labor & Employment

Judge permanently blocks 'persuader rule' requiring disclosure of lawyer union advice to employers

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A federal judge on Wednesday granted a permanent injunction blocking the Labor Department’s revised “persuader rule” requiring lawyers and consultants to report on advice given to employers about persuading employees on union issues.

In an order (PDF) issued Wednesday, U.S. District Judge Sam Cummings of Lubbock, Texas, granted the permanent injunction and a motion for summary judgment by plaintiffs challenging the rule. He had granted a preliminary injunction blocking the rule in June, and that decision is on appeal.

The ABA had raised concerns that the revised rule would negatively affect attorney-client privilege.

Under the prior rule, there was no mandate to report when lawyers and consultants spoke with employers about opposition to union efforts, as long as they had no direct contact with employees. Under the revised rule, lawyers and consultants would have to report advice to employers that has the object of persuading employees concerning union rights.

The Labor Department had maintained the changes were needed because workers should know who is behind an anti-union message, the Legal Intelligencer (sub. req.) reported in an article published earlier this month.

Cummings’ Nov. 16 order cited reasons he gave when he granted the preliminary injunction in June. At that time, he said the Department of Labor likely exceeded its authority in implementing the rule. He also saw a likelihood of success on claims that the new rule violates free-speech and association rights, including the “long-recognized First Amendment right to hire and consult an attorney.”

Jeffrey Londa of Ogletree Deakins represented the National Federation of Independent Business and other plaintiffs challenging the rule. “This is a major victory for employers and preserves their legal and constitutional right to secure counsel when faced with union organizing activities,” Londa tells the ABA Journal in an email. The revised rule blocked by Cummings “was, as the judge previously stated, ‘defective to its core.’ It was part of an effort by the administration to illegally favor unions engaged in union organizing at the expense of employers.”

Londa says the appeal of the preliminary injunction should be moot as a result of Cummings’ order Wednesday. “The government can still appeal,” Londa explained, “but they need start over and appeal today’s order.”

The case is National Federation of Independent Business v. Perez.

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