On January 12, 2017, the Department of Labor filed a notice of appeal of District Judge Sam R. Cummings’ November order that blocked the Department of Labor’s controversial “persuader rule.” The rule, discussed by HRLegalist when it was announced in March 2016, required employers to disclose their agreements with outside consultants hired to discourage employees from unionizing, was met with staunch opposition from both law firms and businesses. In particular, attorneys decried the perceived infringement on their attorney-client privilege while employers argued that the rule dissuaded them from consulting with counsel.
The appeal came as a surprise to some, and the Department of Labor reportedly failed to advise opposing counsel in advance of its intentions. Regardless, many view the appeal as a wasted effort, as it is anticipated that the Department of Labor will withdraw the persuader rule once Donald Trump’s selection for labor secretary, Andrew Puzder, takes the helm. Puzder, the current head of the Hardee’s and Carl’s Jr. fast food chains, has opposed many of the Obama administration’s efforts to increase certain worker protections.
In addition to the potential withdrawal of the persuader rule, the Puzder-led Department of Labor may also choose to withdraw the Department of Labor’s appeal of the injunction that blocked a change to the overtime rules. The change in the overtime rules, which we reported on in May 2016, would have made nearly 4 million Americans eligible for overtime pay.
As always, HR Legalist will continue to keep you updated on the latest developments, and we urge employers to consult labor and employment counsel if you have any questions on how Department of Labor regulations could affect you.
Michael Truncellito focuses his practice on advising employers on federal and state anti-discrimination laws, and defends employers in litigation, if necessary. He can be reached at 215.665.3063 or Michael.Truncellito@obermayer.com.