From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
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.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the memorandum is available at http://src.bna.com/eyf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)