May 25, 2017

DOL Takes Significant Step Forward in Rescinding Persuader Rule

From: JD Supra

Lindsay DiSalvo |Conn Maciel Carey LLP

This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency (“OIRA”) for review.  The DOL, through its Office of Labor-Management Standards (“OLMS”), promulgated the Persuader Rule during the last year of the Obama Administration and received vehement opposition from the employer community due to its impact on access to legal advice and counsel.  If OIRA approves the proposed rulemaking, the next step is for the DOL to publish it in the Federal Register for public review and comment.  The DOL will then consider and evaluate the comments it receives and decide how to proceed with the rulemaking.  Although the outcome is not guaranteed due to the pending comment process, this is an essential step toward eliminating the Persuader Rule.

This rule is problematic for many reasons.  For instance, the rule could discourage employers from seeking legal advice to ensure they are complying with applicable labor laws during organizing campaigns and/or negotiations.  Additionally, it threatens the confidential nature of communications between an employer and its outside counsel related to labor issues as protected by the attorney-client privilege.  Despite these issues that clearly undermine an employer’s right to counsel, as well as other significant challenges created by the Persuader Rule, it became effective 30 days after its publication on April 25, 2017.

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