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DOL (Department of Labor) Persuader Rule Undermines Attorney-Client Privilege, Attorney Generals Say

Fourteen state attorneys general have written to Secretary of Labor Thomas Perez complaining that the Department of Labor’s proposed “persuader” rule would undermine attorney-client privilege and have requested the rule “be withdrawn as drafted.”

The Labor-Management Reporting and Disclosure Act (LMRDA) requires reporting to the DOL of “[a]ny agreement or arrangement with a labor relations consultant or other independent contractor or organization pursuant to which such person undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing….”  Attorneys may be considered consultants under the law.  Exempt from this reporting requirement are situations where the consultant gives or agrees to give “advice” to an employer.  This is the “advice exception.”

The proposed rule, among other things, would severely curtail the advice exception to the reporting requirement, and therefore, limit much of the legal advice now provided by attorneys.  That advice will become reportable if the rule is implemented.

The attorneys general expressed concern that the rule is overly broad and  may discourage employers from seeking legal representation.  They wrote,

“[t]his new rule…would dramatically change well-established precedent by requiring the reporting of advice related to persuasion of employees, regardless of whether the lawyers who provide the advice communicate with anyone other than their employer-clients.”

The letter echoes similar concerns raised by the American Bar Association in 2011.

The rule was scheduled to take effect in March 2014, but the effective date has been postponed indefinitely. See U.S. Department of Labor Delays Implementation of the Revised ‘Persuader’ Rule.

Jackson Lewis P.C. © 2019

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About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

212-545-4000