The U.S. District Court for the Northern District of Texas has enjoined the Department of Labor from enforcing its new Persuader Rule. In the Persuader Rule, the DOL reversed its position on when attorneys who provide “advice” to employers faced with labor organizing campaigns in fact engaged in persuader activities subject to legally required disclosure. Previously, so long as there was no direct contact with employees, there was no reportable persuader activity. Under the new rule, any advice given with even an indirect object of persuading employees would be reportable.

After hearing evidence from trade associations concerning the adverse impact the new rule would have on employers, the court found that the employers had shown sufficient likelihood of success on the merits of the case for the court to prevent enforcement of the rule, pending the outcome of the case. The court found the trade associations likely to succeed in showing that (a) the new rule was contrary to explicit statutory exemptions to disclosure for legal advice, (b) the DOL had failed to explain how its stated goal of increasing transparency justified a change in the rule, (c) the new rule violates freedoms of speech, expression and association, (d) the new rule infringes on attorney-client privilege (especially given that the new rule exceeded the DOL’s authority under the statutory advice exemption), and (e) the new rule was void for vagueness. The DOL offered no evidence to support the change in its view on reportable legal advice. The court’s injunction is effective nationwide. National Federation of Independent Business et al. v. Perez, No. 5:16-cv-00066-C (N.D. Tx. June 27, 2016).