Don't HR Alone #25 - Persuader Rule, Senior Leadership Improvements Needed

Pre-‘persuader rule’ reporting requirements in effect — FEDERAL NEWS

The Department of Labor has clarified that if its June 12 proposal to rescind the so-called "persuader rule," finalized in 2016, is effectuated, that action will not affect the disclosure requirements currently in effect. This is because the nationwide permanent injunction against enforcement of the final rule was issued by a Texas district court on November 16, 2016, before application of the final rule became mandatory—no reports were filed or became due under the final rule. Accordingly, the DOL advised that it has continued to enforce the reporting requirements that existed before the 2016 Rule.

The controversial final rule would have revised two public disclosure reporting forms: Form LM-10 (employer report) and Form LM-20 (agreement and activities report). With some exceptions, these reports must be filed when an employer and a labor relations consultant make an arrangement or agreement that the consultant will undertake efforts to persuade the employer’s workers to reject an organizing campaign or collective bargaining effort by a union. The rule required disclosure for advice provided after June 30, 2016.

In granting the preliminary injunction that it later made permanent, the court, in National Federation of Independent Business v. Perez, considered irreparable harm, the free-speech implications of the rule, and the fact that from a practical perspective, once employers are compelled to disclose the information requested by the forms, there’s no taking it back. The rule was facially invalid, according to the court, because it conflicted with the Labor-Management Reporting and Disclosure Act (LMRDA), the rulemaking was arbitrary and capricious in violation of the Administrative Procedure Act, and the DOL exceeded its authority in promulgating it. Moreover, the rule was unconstitutionally v