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DOL Persuader Rule Blocked by Federal Court

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DOL Persuader Rule Blocked by Federal Court

November 23, 2016

On November 16, a federal district court issued a permanent injunction blocking the implementation of the Department of Labor's (DOL's) "Persuader Rule". The injunction makes permanent a preliminary injunction that was issued over the summer. (See WICs article, "Federal Court Issues Injunction to Temporarily Block DOL 'Persuader' Rule," July 1, 2016.) The rule sought to require that employers disclose any "actions, conduct or communications" that would "affect an employee's decisions regarding his or her representation or collective bargaining rights." Currently, disclosure is necessary for a more limited set of communications, such as a document prepared by an outside firm or organization. The rule sought to expand the reporting requirement to include any communication between an employer and a third-party, including oral communication. Industry groups have argued that the rule would have a chilling effect on the ability of employers to seek legal counsel, as well as be in violation of both first amendment free speech rights and attorney-client privilege.

The court agreed with the arguments put forth challenging the rule in handing down a ruling. The DOL may appeal this ruling, but any legal action will likely not be resolved prior to the new administration and Congress that will be sworn in in January. ANCOR will continue to monitor the litigation and the rule, and inform members of any significant updates.