ABC Files Suit Against DOL's Overreaching 'Persuader Rule'

The organization says the rule will have a particularly disparate impact on small businesses that do not employ in-house legal counsel.

Fri April 01, 2016 - National Edition
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Associated Builders and Contractors (ABC), ABC of Arkansas and a coalition of stakeholders announced today they have filed a joint lawsuit challenging the final “persuader rule” issued by the U.S. Department of Labor (DOL) on March 24, 2016.
Associated Builders and Contractors (ABC), ABC of Arkansas and a coalition of stakeholders announced today they have filed a joint lawsuit challenging the final “persuader rule” issued by the U.S. Department of Labor (DOL) on March 24, 2016.

Associated Builders and Contractors (ABC), ABC of Arkansas and a coalition of stakeholders announced today they have filed a joint lawsuit challenging the final “persuader rule” issued by the U.S. Department of Labor (DOL) on March 24, 2016. The legal challenge was filed in the United States District Court for the Eastern District of Arkansas.

“DOL's persuader rule is a clear attempt to chill employers' First Amendment rights by placing onerous restrictions on their ability to receive advice and discuss the potential pros and cons of unionization with their employees,” said ABC President and CEO Michael Bellaman. “The rule will have a particularly disparate impact on small businesses that do not employ in-house legal counsel, and carries serious repercussions including possible jail time.

Officially titled the Labor-Management Reporting and Disclosure Act, Interpretation of the “Advice” Exemption, the final rule will revise DOL's definition of what activities constitute “advice” and expand those circumstances under which public reporting is required under section 203(c) of the Labor-Management Reporting and Disclosure Act of 1959.

“In overturning 50 years of precedent, the rule replaces clear-cut legal definitions with an indecipherable guessing game for both employers and advisors,” said Bellaman. “The rule is designed to silence the voice of employers by working hand-in-glove with the NLRB's flawed 'ambush election rule' in a thinly veiled attempt by the administration to achieve the goals of its failed 'card check' proposal.”

ABC has opposed the persuader rule since it was first proposed in 2011 and has expressed its concerns through:

Comments submitted to DOL in September 2011

A letter sent to DOL in February 2014

A December 2015 letter to the Office of Information and Regulatory Affairs (OIRA) from a coalition of business groups including 29 ABC chapters

A Jan. 13, 2016 meeting with OIRA officials

ABC will be represented by its general counsel, Littler Mendelson P.C. and Cross, Gunter, Witherspoon & Galchus, P.C. in the case.

Additional plaintiffs in the lawsuit include the Arkansas State Chamber of Commerce/Associated Industries of Arkansas, the Arkansas Hospitality Association, Coalition for a Democratic Workplace, the National Association of Manufacturers and the law firm of Cross, Gunter, Witherspoon & Galchus, P.C.




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