Less than a month after a Federal Court in Texas invalidated the Overtime Rule, another Texas Federal District Court has court struck down another significant Department of Labor rule that NCISS and Lobbyit have long been tracking.
On June 27, 2016, the United States District Court for the Northern District of Texas issued a nation-wide preliminary injunction against the "Persuader" rule. The Persuader rule would greatly encumber the efforts of employers to fight against attempted unionization by employees by subjecting the law firms and consultants advising them to divulge numerous types of sensitive information, dissuading such firms from participating. No such measures were required of the labor-side advocates.
On Monday, December 12, this same court made the preliminary injunction permanent, enjoining any and all departments and/or officials of the U.S. Government (USG) from implementing or enforcing any provisions of the rule.
In his ruling, United States District Court Judge Sam R. Cummings found that:
The new rule exceeds the Department of Labor's authority under the LMRDA "by effectively eliminating the statute's advice exemption contrary to the plain text of section 203 (c) of the law";
The interpretation is arbitrary, capricious, and an abuse of discretion the interpretation violates free speech and association rights protected by the First Amendment because it imposes content-based burdens on speech;
The court also found that the plaintiffs have shown a substantial threat of irreparable harm in the absence of injunctive relief because the new rule:
Reduces access to full, complete, unconflicted legal advice and representation relating to unionization campaigns;
Reduces access to training, seminar, information, and other advice relating to unionization campaigns; and
Burdens and chills First Amendment rights, including the right to express opinions on union organizing and to hire and consult with attorneys.
The court determined that by requiring the disclosure of advice, including legal advice from attorneys to clients, the rule conflicts with attorney ethical rules.
The court also found that the balance of hardship weighs in the plaintiffs' favor in that the threatened injury to plaintiffs is substantial, implicating the risk of deprivation of counsel and burden to constitutional rights.
So even before the Trump Administration has an opportunity to put its stamp on the DOL's regulatory overreach, the courts seems to be doing just fine!
Hopefully (though we're confident of it), more reporting like this to follow!
Thanks to our legislative advocates at