Persuader Rule Implementation Delayed

Last week, the US District Court for the Northern District of Texas issued a ruling delaying the implementation of the Department of Labor’s (DOL) recent changes to the persuader rule. By granting preliminary injunction in the case of the National Federation of Independent Business, et. al. v. Perez (see decision here), the Court prevents the DOL from enforcing its new persuader rule “advice exemption,” which was schedule to go into effect July 1, 2016. The injunction remains in effect until the district court issues a decision on the merits of the case or a higher court overrules the injunction on appeal. There are a number of other cases pending requesting the rule be revoked, including one in the Federal Court of Arkansas in which the Coalition for a Democratic Workplace is a plaintiff. In addition, Congressman Bradley Byrne (R-AL) and Senator Jeff Flake (R-AZ) both introduced resolutions (H.J.Res.87/S.J.Res.35) that would reverse the new rule through use of the Congressional Review Act.

The DOL initially published its final rule modifying the advice exemption to the persuader rule back in March 2016. Under the previous rule, certain reporting requirements were only triggered when consultants and attorneys had direct contact with the employees of a company in which they were providing information on the unionization process. The DOL’s new rule expands the advice exemption to include certain labor advice by a lawyer or consultant even if he/she does not speak directly to a company’s employees as well as certain labor advice provided by trade associations to their members. IEC will continue to work in the courts and on Capitol Hill against this misguided policy change.