Citing Privilege Concerns, Texas Federal Court Enjoins DOL’s New Persuader Rule 1

The USDC for the Northern District of Texas issued a nationwide preliminary injunction blocking the Department of Labor’s implementation of the so-called persuader rule, which would have required employers to disclose their lawyers’ advice regarding union-organizing activity.  Among other reasons, the court found that the new rule would eviscerate the attorney–client privilege.  NFIB v. Perez, 2016 WL 3766121 (N.D. Tex. June 27, 2016).  You may read the decision here.

Background

The Labor Management Reporting and Disclosure Act of 1959 requires employers to filedisclosure reports with the Department of Labor regarding consultants, including attorneys, retained to engage in “Persuader Activities.”  29 U.S.C. § 433(a).

But the LMRDA provides an “advice exemption,” which states that an employer need not report an attorney’s advice if that is all that the attorney provides.  29 U.S.C. § 433(c).  More specifically, the LMRDA exempts privileged communications between an employer and its lawyer.  29 U.S.C. § 434. More…