On July 18, the U.S. Department of Labor issued a final rule to rescind the 2016 persuader rule, officially named the “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.” The final rule will go into effect on Aug. 17, 2018.
In its press release, Associated Builders and Contractors applauded the Trump administration for following through on its promise to rescind the persuader rule. The Obama DOL issued the final persuader rule on March 24, 2016, and just six days later, a joint lawsuit was filed by ABC, ABC of Arkansas and a coalition of stakeholders represented by Cross, Gunter, Witherspoon & Galchus, P.C. and ABC’s general counsel, Littler Mendelson P.C. The lawsuit was filed in the United States District Court for the Eastern District of Arkansas.
On Nov. 16, the rule was permanently enjoined by a federal judge in Texas. The Obama administration subsequently appealed the decision to the 5th Circuit Court of Appeals, but the litigation was delayed numerous times under the Trump administration.
On June 12, 2017, the Trump DOL issued a notice of proposed rulemaking to rescind the 2016 final rule. ABC submitted comments in support of the proposal.
Had the 2016 final persuader rule gone into effect, it would have significantly broadened the reporting requirements for employers, attorneys, trade associations and other third-party advisors under the Labor-Management Reporting and Disclosure Act by redefining what is meant by labor relations “advice.” It also would have effectively limited the ability of employers, particularly small businesses, to obtain labor relations advice from attorneys and trade associations like ABC, and in turn deprived employees of their right to obtain balanced information about union representation.
Rules for the pre-Obama administration standard regulating persuader activity remain in effect.
ABC consistently opposed the Obama administration persuader rule since it was first proposed in 2011 and expressed its opposition through:
• Comments submitted to DOL in September 2011;
• A letter sent to DOL in February 2014;
• A December 2015 letter to the Office of Information and Regulatory Affairs from a coalition of business groups including 29 ABC chapters;
• A January 2016 meeting with OIRA officials;
• A lawsuit filed in March 2016; and
• Comments submitted to DOL in August 2017