A United States District Court Judge in Texas has now issued a decision permanently blocking the Department of Labor’s (DOL) revised “persuader rule” under the Labor-Management Reporting Disclosure Act of 1959 (LMRDA).
As we previously reported, the DOL’s revisions were set to significantly expand the obligations of lawyers and their employer clients to submit reports (which would be publicly available) on advice and activities designed to persuade employees not to join labor unions.
The revised rule was supposed to become effective July 1, 2016, but had been temporarily enjoined in June of this year on a nationwide basis.
District Judge Sam Cummings’ decision reinforces the important distinction between what has typically been considered reportable persuader activity and the non-reportable, privileged advice and work product of legal counsel. It is a significant victory for employers and attorneys that preserves the right of those employers to engage legal counsel concerning union organizing activity without fear that privileged communications will be at risk of disclosure.
Bottom Line
The Department of Labor could choose to appeal Judge Cummings’ decision. However, it is unlikely that such an appeal will meet with success since it almost certainly would not be heard prior to inauguration day on January 20, 2017. Thereafter, our guess is that the Trump Administration would not move forward in challenging Judge Cummings’ decision.
This could mark the end of a very long and arduous process to limit the ability of employers to obtain confidential legal advice during union organizing campaigns. Let’s hope so.