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Federal Judge Halts Partisan Persuader Ploy

WARNING: Content may be troubling for those who support the Department of Labor’s latest assault on the rights of workers and employers.

Just months after the Obama administration finalized an extreme and partisan rule that will boost Big Labor at the expense of America’s workers and employers, a federal judge has blocked enforcement of the new regulatory scheme. Following an earlier decision by a Minnesota judge who declared the department's "persuader" rule was "likely invalid," Texas District Court Judge Sam Cummings issued a scathing ruling challenging the rule’s constitutionality and expressing many of the same concerns Republicans continue to raise. As Rep. Bradley Byrne (R-AL), who has helped lead the fight against this misguided rule, said in response:


W
e have repeatedly warned that the Obama administration’s persuader rule will upend decades of labor law and disrupt attorney-client privilege rights, and today a federal judge agreed.


In fact, the decision by Judge Cummings includes numerous concerns Republicans continue to raise. 

The "persuader" rule upends decades of labor law and ignores congressional intent.

  • Rep. Byrne: The well-established "advice" exemption of the Labor Management Reporting and Disclosure Act has been in effect during the Kennedy administration, the Johnson administration, the Carter administration, and the Clinton administration. But now, decades later, the Obama administration is working around Congress and unilaterally rewriting the law.

  • Judge Cummings: [T]he New Rule is defective to its core because it entirely eliminates the LMRDA’s Advice Exemption. In whatever manner DOL defines "advice," it must do so consistent with the statute and therefore must actually exempt advice, including advice that has an object to persuade. The New Rule not only fails to do that, it does the exact opposite: it nullifies the exemption for advice that relates to persuasion.


The "persuader" rule is an assault on free speech.

  • Chairman John Kline (R-MN) and Rep. Phil Roe (R-TN): This rule will chill employer free speech.

  • Judge Cummings: The evidence presented at the hearing demonstrates that DOL’s New Rule will deter employers from seeking counsel and exercising their free speech rights.


The "persuader" rule is an attack on an individual’s right to seek legal advice.

  • Rep. Roe: This is an attack on the fundamental right of employers to seek legal counsel.

  • Judge Cummings: Under the New Rule, an attorney that communicates confidentially with only his or her employer-client, advising the client about a unionization matter, is now required to disclose to DOL, and thus the world, confidential information.


The "persuader" rule will particularly burden small businesses.

  • Rep. Byrne: Many small businesses, despite their best efforts, will inadvertently get tripped up while trying to navigate a maze of labor rules on their own.

  • Judge Cummings: Indeed, Plaintiffs have shown that there is a substantial likelihood that many attorneys will no longer be available and willing to offer legal advice to employers relating to union campaigns as a result of DOL’s New Rule … Many employers – especially smaller employers – lack in-house counsel, human resources staff, or other expertise in such matters.


While these consequences will directly impact employers, it’s actually America’s workers who will be hurt the most. As Rep. Roe said at a recent hearing on the department’s persuader ploy:

It’s critical that workers are able to hear from both sides and receive all the information they need to make a fully informed decision. But this rule will stifle debate and restrict worker free choice.


It’s time for the administration to focus less on boosting Big Labor and more on creating the jobs and opportunities working families desperately need. That’s exactly what House Republicans are focused on.


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