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September 25, 2020

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Signs Point To Change In Government’s Position On New (But Currently Enjoined) Persuader Rule

The fight over the Department of Labor’s attempt to “clarify” the 50 plus year interpretation of the persuader rules may be coming to an end.  After its implementation, the persuader rule was immediately challenged in litigation in Minnesota and Texas.  Late last year, the U.S. District Court in Texas issued a national injunction halting the enforcement of the rule pending the outcome of the litigation.    The government appealed and before the appeal could be heard the administration changed.

Recent court filings demonstrate the new administration may be rethinking whether it wants to continue trying to enforce the new persuader rules or perhaps even abandon the rule altogether.  In the Texas litigation, the Department of Justice filed an unopposed Motion for Extension of Time to file a response to the Court on the grounds that, “Acting Solicitor General, the Civil Division of the Department of Justice, and the new leadership at the Department of Labor are engaged in ongoing consultations regarding this litigation.  The government requires additional time to complete those consultations.”  A similar document in the form of a Joint Status Report was filed in the Minnesota litigation.

It is very likely the new administration is considering what to do about the persuader rule and the ongoing litigation; we may see a change very soon.  We will keep you posted on further developments.

© 2020 Proskauer Rose LLP. National Law Review, Volume VII, Number 136

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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

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