Persuader Rule deemed unlawful

In great news for business owners and employers everywhere, a U.S. District Court Judge in Texas likely just put a permanent stop to one of the Obama Administration’s most controversial, speech-stifling labor policies. On Wednesday, Senior U.S. District Court Judge Samuel Cummings issued an injunction of the so-called “persuader rule,” which essentially prohibited employers from discussing the pros and cons of unionization with their employees, ending months of unease within the small business community.

And it’s not a day too soon. After months of ongoing litigation, employers are finally no longer living in limbo – unsure of what exactly they can and can’t say to the people they work with every day.

{mosads}The “advice exemption” under the Labor Management Reporting and Disclosure Act was at the center of this debate.  Under decades of settled law, employers who received advice and counsel from labor relations consultants – i.e. attorneys – on workplace issues like unionization were exempt from reporting this interaction to the Department of Labor, unless these consultants interacted with employees directly.  But Obama’s exceedingly partisan Department of Labor (DOL) sought to change that.

One of the most egregious displays of Executive Branch overreach, the persuader rule, released by DOL in March of 2016, forced employers to report seeking any type of legal advice or outside counsel related to unionization campaigns, even if it was only between attorney and client.

This upended decades of established labor law – and sowed massive confusion across America’s business community.

To an outsider, this change might seem minimal.  However, this regulation dealt a crippling blow to many small businesses that don’t have the resources to afford in-house legal counsel to guide them through the union election process, or those that rely on support and counsel through membership in a trade association.  Big corporations almost always have an in-house legal department, but many of America’s 28 million small businesses do not, and already struggle to navigate a complex web of always-evolving labor laws.

Additionally, it hurt America’s workforce.  By limiting what employers are able to discuss with their employees, the persuader rule has a chilling effect on free speech in the workplace and robs workers of their right to hear all of the facts and make an informed decision when it comes to whether or not to join a union.  Instead, answering basic questions like how a union could impact a worker’s day-to-day life could run afoul of this vague rule.

Fortunately, Judge Samuel Cummings’ ruling appears to have just sounded the death knell to one of Big Labor’s best recruiting tools – the ability to manipulate and sway workers into the collective without allowing them to hear arguments from both sides.  And this is a great first step to returning freedom of choice and informed decision-making back to American workers. 

However, there’s still a lot to be done.  Several other Obama-era anti-business regulations currently remain on the books – including the ambush election rule that tips the scale in favor of unions by expediting union elections, the allowance of micro-unions through the organization of sub-groups of a workplace into collective bargaining units, and the joint employer standard, which overturned longstanding precedent and made liable a company that does not exercise direct and immediate control over another employer’s employees.  

Congress must remain vigilant and stopping overreaching regulations must remain a top priority in Washington.  And Judge Cummings’ ruling upending a gross Obama Administration overreach is a great start.

Heather Greenaway is a spokesperson for the Workforce Fairness Institute (WFI).

The views expressed by authors are their own and not the views of The Hill.