Labor Department Wants Long-Term Delay in Persuader Rule Appeal

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By Jon Steingart

The Department of Labor is seeking to put the freeze on a legal case involving the Obama administration’s “persuader” rule while it pursues an administrative process to roll back the regulation ( Nat’l Fed’n of Indep. Bus. v. Acosta , 5th Cir., No. 17-10054, motion to hold case in abeyance 6/2/17 ).

The department June 2 asked the U.S. Court of Appeals for the Fifth Circuit that the DOL’s appeal of a judge’s order blocking the rule be held in “abeyance.”

Secretary of Labor Alexander Acosta wrote in an op-ed May 22 that the persuader rule would be the department’s first effort under President Donald Trump to undo the Obama administration’s regulatory legacy. The DOL sent to the White House for final review a draft proposal to rescind the rule, according to an update appearing May 23 on the Office of Management and Budget website.

The persuader rule would have required employers to disclose information about the third-party labor relations consultants, or “persuaders,” they hire to help craft messaging intended to dissuade workers from joining labor unions. Judge Sam R. Cummings ruled against the DOL in 2016 in a lawsuit brought by a coalition of business groups and states. He concluded the rule was inconsistent with the law the DOL said it purported to interpret. The DOL under former President Barack Obama appealed to the Fifth Circuit.

The business group challengers don’t want the delay and plan to ask the court to reject the request, the DOL said in the motion. The states support the delay, it said.

The DOL received a 30-day delay in the appeal in May, which it requested so incoming leadership at the department could evaluate its position. Acosta was sworn in April 28.

If the court grants the abeyance, no action on the appeal would be required for six months, or 30 days after the DOL issues a final rule rescinding the persuader rule, whichever comes sooner.

Daniel Tenny, Sarah Carroll, and Daniel Riess, lawyers with the U.S. Department of Justice’s Civil Division in Washington, D.C., represent the DOL.

Ogletree, Deakins, Nash, Smoak & Stewart P.C. attorneys Jeffrey Londa in Houston and Christopher Murray in Indianapolis and Fernando Bustos of the Bustos Law Firm P.C., in Lubbock, Texas, represent the business coalition.

Texas Solicitor General Scott Keller, Associate Deputy Attorney General David Nimocks, Assistant Attorney General Bill Davis, and attorney general’s office Senior Counsel Michael Toth, all of whom are in Austin; and Arkansas Assistant Attorney General Michael Cantrell in Little Rock represent the state coalition.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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