Court Permanently Blocks Dangerous DOL “Persuader Rule”

Since our firm’s founding in 1964, we have advised employers on how to lawfully remain union-free. That has involved not only helping our clients with their individual labor relations and employment issues, but also banding together with other similar firms to advocate for employers. In line with that effort, last March, Skoler Abbott, along with several other management-side law firms across the United States that are part of the Worklaw Network, sued the Department of Labor seeking to strike down a DOL rule that would have dramatically interfered with a law firm’s ability to help employers remain union-free. The so-called “persuader rule” required employers (both union and non-union) to publicly report when they use consultants (including lawyers) for labor relations advice given for the purpose of persuading employees not to unionize. We argued that, among other things, the rule invaded our duty to protect client confidentiality and respect the longstanding doctrine of attorney-client privilege. A similar lawsuit was filed in a Texas federal court by pro-business trade associations.

Yesterday, a judge in the Texas case issued a decision permanently enjoining DOL from enforcing the rule anywhere in the country. This means the rule has been stopped dead in its tracks. Citing an earlier decision in the Texas case, the judge agreed that the “persuader rule” undermines age-old principles essential to the practice of law, including the duty of confidentiality and the attorney-client privilege. DOL could appeal the decision to the appropriate federal Court of Appeals, but with a new administration heading to Washington in January, it is likely that the Trump Administration would not fight to defend the “persuader rule” and might, in fact, seek to scrap it.

This is good news for our clients and indeed for all employers across the country who seek to remain union-free. If you have any questions about this development, please feel free to contact any of the attorneys at Skoler, Abbott & Presser, P.C.

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