On November 9, 2018, the U.S. Department of Labor (DOL) withdrew its appeal of the Obama-era regulation regarding persuader activity and reporting requirements pursuant to Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA), commonly known as the Persuader Rule. This rule, which never went into effect, was enacted in March 2016. Its stated intent was to increase employer reporting requirements regarding use of anti-union persuaders. As defined by the Rule, persuader activity was considered activity by anyone engaged to help management discourage employees from forming or joining a labor union, including lawyers hired to advise management on how to discourage union organizing activity.
The Rule was immediately challenged by the National Federation of Independent Business and other business groups, along with 10 states, on the grounds that it violated attorney-client privilege. It was stayed by a District Court in Texas on June 27, 2016, before it ever went into effect. (National Federation of Independent Business v. Perez, N.D. Tex. Case No. 5:16-cv-00066-C.) The DOL immediately appealed the District Court's injunction.
Following the change in administration, the Trump DOL requested a stay of the appeal while it worked to rescind the rule through the federal rulemaking process. It published its intent to rescind the rule through the Federal Register in June 2017. The rescission was effective later that summer; however, the appeal remained pending. Now, with the appeal officially withdrawn, a voluntary dismissal has been entered as of November 9, 2018, and employers can rest easy that the Persuader Rule will not go into effect.
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