The change of a few words in an agency rule of interpretation has probably never before caused so much anxiety. According to Secretary of Labor Thomas Perez, the U.S. Department of Labor broadened the application of its long standing Persuader Rule, which requires public reporting of all labor-related arrangements and activities undertaken for employers, because, “Workers should know who is behind an anti-union message. It’s a matter of fairness.” According to the American Bar Association and the Association of Corporate Counsel, however, the new changes by the DOL vitiate the Rules of Professional Conduct and attorney-client confidentiality and privilege.
Both positions are currently before the U.S. Court of Appeals for the Fifth Circuit. After a nationwide preliminary injunction and a biting opinion by Senior Judge Samuel R. Cummings in the U.S. District Court for the Northern District of Texas, it is fairly plain that the DOL’s new rule does create problems. As written, it may require thousands of labor and employment lawyers, associations and consultants to report to the DOL advice given, communications made, and fees charged to their employer clients.
