On July 18, 2018, the U.S. Department of Labor (DOL) issued final rules rescinding persuader regulations previously released in 2016, under the Obama Administration.  The persuader rules govern when employers and those who advise employers on union organization efforts (e.g., labor relations consultants and attorneys) must report to the DOL activity that is intended to persuade employees whether to exercise or how to exercise their rights to union representation and collective bargaining. 

The 2016 regulations entitled, “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act,” expanded reportable persuader activity to include indirect persuader activity.  Under those rules, consultants and attorneys who only engaged in “behind the scenes” activities, such as recommending drafts of speeches to employers or revising communications to employees, would have fallen under the persuader rule.  Prior to the 2016 rules, however, such “behind the scenes” work would not have been considered reportable persuader activity.

In November 2016, the rules were dealt a major setback when a Texas federal court permanently enjoined the 2016 persuader rules.  When issuing the permanent injunction, the court stated that the rule was “not merely fuzzy around the edges,” but rather was “defective to its core.”  National Federation of Independent Business v. Perez, No. 5:16-CV-00066-C (N.D. Tex. Nov. 16, 2016).

Now, the DOL officially rescinds the 2016 Persuader Rule with its issuance of final regulations available at 83 Fed. Reg. 33826 (July 18, 2018).  The DOL stated, “Pursuant to today’s final rule, the reporting requirements in effect are the requirements as they existed before the Persuader Rule.”  These final rules take effect on August 17, 2018.