Court Permanently Blocks “Persuader” Rule

A federal court on Wednesday permanently blocked the implementation of the Department of Labor’s new “persuader” rule, which would have required employers to notify employees of any consultants retained to do work related to collective bargaining or union organization activities.

The rule was challenged by several business groups, including the Coalition for a Democratic Workplace — whose membership consists of Argentum, the American Seniors Housing Association and the National Center for Assisted Living, among many others.

The judge sided with those groups. More details from attorney Alan Smith, writing at the Society for Human Resource Management:

The U.S. District Court for the Northern District of Texas struck down the new rule, which revised the old persuader rule, on Nov. 16 as overly broad, arbitrary and capricious, noted Fred Schwartz, an attorney with Barnes & Thornburg in Chicago. The new rule also unconstitutionally curbed free speech, he added.

The new rule was “inherently flawed,” said Michael Lotito, an attorney with Littler in San Francisco and co-chair of the Workplace Policy Institute, the firm’s government affairs branch. Some law firms announced they were getting out of the business of providing labor relations advice entirely as a result of the rule, he noted.

More on the difference between the old rule and the new, from Smith:

Consultants and lawyers who provide indirect advice on labor relations—those who conduct supervisor training and draft union-avoidance materials and handbook provisions—originally weren’t covered by the old persuader rule.

That was to change with the DOL’s new persuader rule introduced March 24, which required that employers report which consultants and lawyers provided indirect communications on labor relations, how much they were paid and some details on the nature of the communications. And it required lawyers and consultants to report who they provided such indirect communications to.

“Workers often don’t know that their employer hired a consultant to manage its message in union-organizing campaigns,” such as by writing speeches for managers, talking points, letters and other documents, according to the DOL. “Consultants may also direct supervisors to express specific viewpoints that don’t match those supervisors’ actual views as individuals—something workers may find relevant in assessing the information they receive from their supervisors.”

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