Article by Andrea Milano and Christopher Wilkinson
Earlier this month, the United States Department of Labor ("DOL") announced its intent to rescind the Obama-era regulations regarding persuader activity and reporting requirements pursuant to Section 203(c) of the Labor-Management Reporting and Disclosure Act ("LMRDA"). Under the Obama administration, persuader activity was considered activity by anyone engaged to help management discourage employees from forming or joining a labor union, including lawyers hired to advise management on how to discourage union organizing activity. The official rescission of the Rule was published in the Federal Register on June 12, 2017.
The DOL cited several reasons for rescinding this Rule, including the following. First, rescission allows the Department to engage in further statutory analysis, including the anticipated effects of the Rule on regulated parties and the issues identified during prior litigation over the Rule. Additionally, the Department has stated its desire to further consider the administrative burden of the various reporting requirements, including the interaction between Form LM-20 and Form LM-21. The Department also cited considering in more detail the impact on labor attorneys' activities and regulated entities' ability to seek and obtain legal advice under the prior Rule. Finally, the Department cited to limited resources and competing priorities to justify its decision to rescind the Rule.
As a practical matter, the rescission of this Rule will not impact employers on a day-to-day basis, as the Rule was enjoined by a District Court in Texas on June 27, 2016, before it ever went into effect. (National Federation of Independent Business v. Perez, N.D. Tex. Case No. 5:16-cv-00066-C.) To the extent that any entities were complying with the requirements of the Rule out of an abundance of caution that the injunction would be lifted and the Rule would be enforced retroactively, such reporting need not continue. Notably, these changes have occurred without an OLMS head in place at the Department of Labor. As with the withdrawal of the joint employment Administrator's Interpretation, DOL is moving on with some initiatives despite the slow pace of appointments. The federal labor policy landscape is very fluid and we will be watching developments closely.
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