29 June 2016

Federal Court Enjoins New Department of Labor Persuader Agreement

Last week, Miller Johnson sent out agreements to many of its clients seeking to take advantage of a potential, time-sensitive opportunity to avoid the reporting obligations imposed by the Department of Labor’s (DOL’s) new “persuader regulations.”* These regulations may require the reporting of some work Miller Johnson has traditionally performed for its clients, including drafting employee handbooks and policies, supervisor training, drafting of union avoidance materials and providing labor advice.

On Monday, June 27, the United States District Court for the Northern District of Texas issued a nationwide injunction prohibiting the DOL from implementing its new persuader rules. While this injunction is a welcome development, it is the first step in what promises to be extended litigation over the new persuader rules. Should the injunction be lifted, or should the DOL ultimately prevail on the merits, the DOL may return to its current position of requiring reporting of indirect persuader activity engaged in pursuant to agreements entered into after July 1, 2016.

As a result, Miller Johnson continues to strongly recommend that employers execute agreements or finalize arrangements with their labor consultants and law firms to provide services that include indirect persuader activity on or before tomorrow, June 30 in order to take advantage of the DOL’s current enforcement position, for as long as it continues.

If you received an agreement from us and have not yet sent it in, please carefully consider doing so. If you have not received an agreement, but think you should have, please contact your attorney at Miller Johnson. If you have any questions about the persuader regulations, the persuader agreements, or the injunction, please contact a member of Miller Johnson’s labor group.

*This letter did not go out to all clients because many clients (e.g. public sector clients, individuals, and others) are either not covered by the DOL’s regulations or are highly unlikely to be impacted by them.