Last November, the United States Department of Labor pushed back the publication of its new rules governing persuader activity to March 2014. Just today, however, the United States Department of Labor announced that it will again be postponing the publication of its new rules. No new date was provided.
The proposed changes to the rule have drawn controversy because they impose significant restrictions on the “advice exception” to the Labor Management Reporting and Disclosure Act (“LMRDA”). The LMRDA requires employers and legal consultants to report any arrangement for activity involved in persuading employees on issues regarding their right to organize and bargain collectively. Currently, the advice exception provides that no employer or consultant has to file a report if that consultant simply gives advice to the employer. If the proposed changes take effect and the advice exception is eliminated or restricted, however, it could potentially require unprecedented disclosures from attorneys and law firms that represent employers in labor relations matters.
Although it is not entirely clear why the DOL has (again) postponed publication of their new rules on persuader activity, it is very likely the DOL is concerned about the potential legal challenges critics of the proposed new rules have threatened to make. Such critics include the American Bar Association (the lawyers!) and the Association of Corporate Counsel (more lawyers!), who have argued that the proposed rules impede on rules of professional conduct pertaining to the attorney-client privilege.