Labor Department Seeks to Protect Regulation From Red State Onslaught

The Obama administration is asking a federal judge to throw out a challenge brought by ten states against a new labor regulation that will force union busters out of the shadows.

Finalized in April by the Department of Labor, the “Persuader Rule” is under assault in federal court, where several Republican-led states, are seeking an injunction against it.

According to a brief filed last week, the department argued that the state interveners claims should be rejected, and the regulation preserved.

“The public interest would be undermined if the Court were to enjoin a rule that seeks to bring greater transparency to attempts to influence employees’ decisions about whether to organize and bargain collectively,” the filing reads.

The persuader rule clarified a portion of the 1959 Labor-Management Reporting and Disclosure Act (LMRDA), which required businesses to inform the public whenever they sought the help of an outside firm to squash an organizing drive.

It specifically closed a loophole in the interpretation of the law that allowed indirect union-busting assistance — such as the supplying of talking points, video materials, and brochures — to go unreported.

According to the AFL-CIO, roughly 82 percent of employers will seek help of an outside firm to thwart an organizing effort.

Texas and nine other states claim that the mandatory disclosures violate the Tenth Amendment by improperly overriding state laws affording protection to attorney-client communications.

“None of this information required to be reported falls within the traditional confines of the attorney-client privilege,” the government shot back in its filing.

DOL attorneys contended that disclosures required by the regulation — the identity of the firm providing assistance, the types of material provided in the campaign, the duration of the services — all exist outside the realm of protected communications.

The court has “repeatedly rejected attempts to extend the traditional protections afforded to privileged attorney-client communications to cover information not traditionally considered privileged, such as the basic fact of legal representation or the name of a client,” DOL stated.

Rather than “commandeer” state law, the persuader rule “only requires covered private entities to disclose information under prescribed circumstances,” the briefing noted, countering the states’ Tenth Amendment arguments.

The lawsuit was initially filed in March by five business groups, including the National Federation of Independent Business (NFIB). In May, the court allowed Texas, Alabama, Arkansas, Indiana, Michigan, Oklahoma, South Carolina, Utah, West Virginia, and Wisconsin to join the plaintiffs in seeking an injunction.

Republican in Congress are working on a parallel track against the persuader rule. A GOP-led House labor subcommittee convened a hearing in April to discuss ways to undermine the regulations. Lawmakers have since put forward H.J. Res. 87 to use their authority under the Congressional Review Act to block implementation of the rule. The legislation was passed out of committee last month.