In the news recently, U.S. District Judge Sam R. Cummings of the Northern District of Texas issued a nationwide preliminary injunction barring the U.S. Department of Labor from implementing the revised Persuader Rule. It was to become effective on July 1, 2016. The Persuader Rule was developed by the Office of Labor-Management Standards (OLMS) to realign the Department’s regulations with the text of a law passed by Congress, The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). To that extent, the Final Rule would require that employers and any consultants hired to manage its messages in union organizing campaigns to disclose information concerning discussions about resisting organizing campaigns that would help workers make a more informed choice in exercising their rights. The DOL has said that the regulation addresses a lack of transparency when employers engage third-party consultants to help craft anti-union messages to workers.
On the flip-side, a federal judge in Minnesota heard a similar challenge, but declined to grant an injunction in June. This outcome suggests the issue could ultimately make its way up to the federal courts of appeals or the Supreme Court. For the time being, this decision is a significant victory for employers, as it preserves their right to obtain sound legal advice protected from disclosure by the attorney-client privilege.