MINNEAPOLIS--(BUSINESS WIRE)--Worklaw® Network – a nationwide affiliation of independent law firms representing and advising employers in labor and employment matters – today filed a Motion for a Temporary Restraining Order against the U.S. Department of Labor and Secretary Thomas Perez to prevent implementation or enforcement of the new Interpretation of the “persuader rule.” The Network requested an expedited hearing on the Motion, given the fact that the new Interpretation is set to go into effect April 25.
“A bedrock principle of the legal profession is the sanctity of the attorney-client relationship. This new Interpretation is a slippery slope as the federal government is seeking to intrude upon attorney-client confidentiality and attorney-client privilege,” said Millicent Sanchez, president of the Worklaw® Network and a partner at Swerdlow Florence Sanchez Swerdlow & Wimmer. “Given that no harm will come to the Department if the Interpretation is enjoined, it is our hope that the Court will grant a temporary delay to allow sufficient time for a review of the merits of the case. The previous Interpretation has been in place for more than 50 years; a delay of a few weeks or months would be inconsequential.”
The new Interpretation, published in the Federal Register on March 24, enables the federal government to require vast numbers of employers, attorneys and consultants to disclose confidential information — including the nature of conversations, copies of representation agreements, the amounts of fees paid, and other details – about employment, labor and HR-related legal matters. The rule requires disclosure of these items for advice provided after June 30, 2016 and would chill employer free speech, employee free choice and effective attorney and consultant advice.
In addition to eviscerating the attorney-client relationship, the new Interpretation violates the First Amendment’s protection of viewpoint- and content-based speech, writes the Network in its Motion.
“The Department has specifically targeted employer and consultant speech that contains an ‘anti-union’ viewpoint. The Department repeatedly indicates that activity must be reported if it is ‘anti-union’ or engaged in for the purpose of ‘union avoidance.’ In fact, the phrase ‘anti-union’ appears 58 times in the new rule, and the phrase ‘union avoidance’ appears 97 times. The Interpretation singles out a viewpoint disfavored by the Government….Importantly, the Government does not require that lawyers report any other messages to employees they may help their clients develop, including lawyers that represent unions. It is only when the message is, in Department parlance, ‘anti-union’ that the reporting obligation is triggered….As a viewpoint-based regulation of speech, the Interpretation must be set aside.”
The Motion further argues that “[e]ven if the Court were to disregard the viewpoint discrimination that permeates the Interpretation, the Interpretation would be subject to strict scrutiny as a content-based restriction on speech.” While the Department’s purported interest is “transparency” of the source of information given by employers to employees regarding a union organizing campaign, the so-called transparency only extends to information deemed “anti-union.”
“…the Department completely pulls the legs out from under its own asserted goal of promoting transparency as to the ‘source’ of the message conveyed by an employer by excluding from the reporting requirement documents created by a third party as long as no revisions are made. This not only stands the advice exemption on its head, but it also reveals that the Government’s asserted interest is indeed a farce. When the ‘source’ of the information is truly a third party, no reporting is required and no transparency results. However, when the ‘source’ of the information is the result of collaboration between an employer and its advisor, the details must be disclosed. The Department’s true goal is to target labor consultants who assist employers that wish to remain union free, and, tellingly, the Interpretation is quite narrowly tailored to achieve this goal.”
Worklaw® Network’s Motion, which was filed in the United States District Court for the District of Minnesota, requests that the Court stay, set aside, or enjoin implementation of the Interpretation of the “advice exception” in Section 203(c) of the Labor Management Reporting and Disclosure Act, 29 USC 433(c). The Motion comes on the heels of a lawsuit filed on March 31, 2016 by Worklaw® Network against the U.S. Department of Labor and Secretary Thomas Perez.
Worklaw® Network is a nationwide affiliation of independent law firms practicing management-side labor and employment law, with member firms, attorneys or affiliates in 27 U.S. states. More details are available at www.worklaw.com.