DOL Opens Court Defense of Persuader Rule

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By Lawrence E. Dubé

April 29 — The Labor Department filed its first detailed response to court challenges to the agency's interpretation of an advice exemption from Labor-Management Reporting and Disclosure Act rules covering “persuader” activities.

The LMRDA, 29 U.S.C. § 433(a), requires employers to report certain efforts to “persuade” employees concerning their exercise of organizing and bargaining rights. The act exempts arrangements for “giving or agreeing to give advice” to an employer, but challengers argue DOL's recent rulemaking on the advice exemption is unlawful or unconstitutional.

Responding to a challenge in the U.S. District Court for the Eastern District of Arkansas, the government argued in an April 28 memorandum that the rule does not threaten anyone with “inappropriate harm.” The agency's interpretation of the law “supports the public interest and is supported by fundamental equitable considerations,” government lawyers wrote.

‘Persuader' Rule Interpretation Under Fire

On March 24, the DOL's Office of Labor-Management Standards adopted a final rule (RIN 1215-AB79; 1245-AA03) that interprets the statutory exemption for advice more narrowly. The revised rule requires employers and consultants to report agreements for “indirect persuader activities” (56 DLR AA-1, 3/23/16).

The lawsuit in the Eastern District of Arkansas, filed March 30, was the first of three pending challenges to the rule. Challenges are also pending in the District of Minnesota and the Northern District of Texas (79 DLR A-8, 4/25/16).

In the Arkansas case, the Associated Builders and Contractors of Arkansas, joined by six other groups, filed an April 1 memorandum arguing for a preliminary injunction.

Court Filing Defends DOL's Position

In its response, government lawyers representing the DOL, Secretary of Labor Thomas E. Perez and OLMS Director Michael J. Hayes argued the DOL rule is a lawful and reasonable measure that falls within the agency's statutory authority.

The rule serves the statutory purpose of Section 433(a) by requiring public reporting about providers of indirect “persuader” activity, the government wrote.

The LMRDA does not prohibit consultants or attorneys from assisting employers with persuasion or advocacy, but it requires disclosures of their activities and agreements to avoid leaving employees with “the misimpression that materials and messages created by third parties were created by their supervisors, coworkers or employers,” the memorandum said.

The government argued the requirements of the rule are “appropriately cabined and lawful.” Asserting the challengers will not be able to demonstrate that the rule unlawfully infringes on the confidentiality of attorney-client relationships or otherwise runs afoul of federal law or the U.S. Constitution, the government asked the court to deny the motion for a preliminary injunction.

The court has scheduled a May 9 hearing on the preliminary injunction request.

Justice Department attorney Elisabeth Layton in Washington is lead attorney for the government. The plaintiffs are represented by Cross, Gunter, Witherspoon & Galchus P.C. and Littler Mendelson P.C.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

For More Information

Text of the memorandum is available at

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