On June 27, 2016, in National Federation of Independent Business v. Perez, Judge Sam R. Cummings of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction precluding the United States Department of Labor (“DOL”) from enforcing its recently introduced rule interpreting the Labor-Management Reporting and Disclosure Act’s (“LMRDA”) “advice” exemption. 81 Fed. Reg. 15,924 et seq.
As discussed in our previous blog, the LMRDA requires employers and labor relations consultants, often referred to as “persuaders,” to file reports with the government detailing expenditures, activities, agreements, and arrangements undertaken to persuade employees regarding their rights to join or refrain from joining unions, but these requirements are waived if the consultants do nothing more than “giv[e] or agree to give advice to [the] employer.” Under the DOL’s previous interpretation of this “advice” exemption, employers and their consultants were not required to publicly disclose their arrangements unless a “persuader” made direct contact with company employees. The new rule reinterprets the meaning of “advice” so that employers and consultants must file reports whenever “[a] consultant undertakes, or agrees to undertake, ‘persuader activities’” – even if the consultant “has no face-to-face contact with employees” and has limited his or her engagement to “indirect persuasion.”