Sources: Associated Builders & Contractors (ABC), Washington, D.C.; CP staff
A lawsuit ABC and other national or state groups have filed in U.S. District Court for the Eastern District of Arkansas challenges the U.S. Department of Labor’s final “persuader rule,” issued late last month. Officially titled Interpretation of the “Advice” Exemption, it revises the definition of what activities constitute “advice” and expands circumstances under which public reporting is required under the Labor-Management Reporting and Disclosure Act of 1959.
“[The] 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 employees,” contends ABC President Michael Bellaman. “[It] 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.
“In overturning 50 years of precedent, the rule replaces clear-cut legal definitions with an indecipherable guessing game for employers and advisors. The rule is designed to silence the voice of employers by working hand-in-glove with the National Labor Relations Board’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, expressing concerns through: comments and a letter submitted to the Labor Department in 2011 and 2014; a late-2015 letter to the Office of Information and Regulatory Affairs (OIRA) from a coalition of business groups, including 29 ABC chapters; and, a meeting with OIRA officials earlier this year. Representing ABC as general counsel are Littler Mendelson P.C. and Cross, Gunter, Witherspoon & Galchus, P.C. Joining ABC and its Arkansas chapter as plaintiffs are Coalition for a Democratic Workplace, National Association of Manufacturers, Arkansas State Chamber of Commerce/Associated Industries of Arkansas and Arkansas Hospitality Association.