Is The Obama-Era 'Persuader' Rule Making A Comeback?

In a recent article published by Law360, Peter Spanos discusses the U.S. Department of Labor's rollout of an Obama-era program to inform employers about their obligation to report union organizing campaign activities. The rollout has raised questions about whether the move indicates the agency's growing appetite for reviving a controversial rule that would expand employers' and labor attorneys' disclosure requirements.

Spanos explained that the program essentially takes the agency back to where it was under the Obama administration's persuader rule, which a Texas federal judge blocked from taking effect in 2016. He added that this time the agency may be taking the backdoor to get it done.

"The DOL has taken the new position that without any further legislation or regulation being necessary, that the LMRDA already requires persuader reporting of the kind that the Obama administration adopted and the court reversed," Spanos said. "What they're saying is, 'We don't have to wait for a change in the rules.' Clearly they wouldn't initiate PROP unless there were a persuader rule in effect."

The persuader rule caused significant backlash from management-side attorneys and even the American Bar Association, which have said the rule would saddle law firms with significant new reporting requirements and raise concerns about attorney-client privilege.