Hunton Employment & Labor Perspectives

On June 12, 2017, the Office of Labor Management Standards of the Department of Labor (DOL) published a Notice of Proposed Rulemaking that proposes to rescind the controversial “persuader rule” implemented by the DOL under the Obama administration. This rule sought to require disclosure of advice to employers from consultants and attorneys who engage in activities designed to persuade employees not to unionize. This announcement is on the heels of the DOL’s June 7, 2017, press release withdrawing two administrative interpretations issued by the DOL under the Obama administration concerning misclassification of independent contractors and joint employment, as discussed in a previous post. The recent flurry of activity by the DOL indicates that the Trump administration is following through with its promise to loosen many of the onerous restrictions placed on employers by the DOL in the Obama-era.

While this announcement is notable, if the proposed rule goes into effect, it would not change any of the reporting requirements currently imposed on employers because the persuader rule was never actually enforced. The implementation of the persuader rule was preliminarily enjoined in June of 2016, then permanently enjoined nationwide in November of 2016 by a federal judge in the Northern District of Texas. That decision was appealed by the DOL to the Fifth Circuit. However, the DOL under President Trump has indicated that it would not seek to enforce the rule, either by not pursuing the appeal and leaving the injunction in place, or by rescinding the rule altogether. While it seemed after the election of President Trump that the persuader rule’s days were likely numbered, this Notice of Proposed Rulemaking is the first official step in the process taken by the DOL to eliminate this highly-controversial reporting requirement for employers.

The text of the proposed rule can be found here.