Associated Builders and Contractors (ABC), ABC of Arkansas and a coalition of stakeholders announced they have filed a joint lawsuit challenging the final “persuader rule” issued by the U.S.. Department of Labor (DOL) on March 24, 2016. The legal challenge was filed in the United States District Court for the Eastern District of Arkansas.
“DOL’s persuader 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 their employees,” said ABC President and CEO Michael Bellaman. “The rule 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.
Officially titled the Labor-Management Reporting and Disclosure Act, Interpretation of the “Advice” Exemption, the final rule will revise DOL’s definition of what activities constitute “advice” and expand those circumstances under which public reporting is required under section 203(c) of the Labor-Management Reporting and Disclosure Act of 1959.
“In overturning 50 years of precedent, the rule replaces clear-cut legal definitions with an indecipherable guessing game for both employers and advisors,” said Bellaman. “The rule is designed to silence the voice of employers by working hand-in-glove with the NLRB’s flawed ‘ambush election rule’ in a thinly veiled attempt by the administration to achieve the goals of its failed ‘card check’ proposal.”
In an earlier release, said the rule will greatly limit the ability of employers, particularly small businesses, to obtain advice from labor relations experts, and in turn deprive employees of their right to obtain balanced information about union representation.
ABC Vice President of Legislative and Political Affairs Kristen Swearingen said, “In narrowing this exemption, DOL is greatly limiting businesses’ ability to obtain labor relations advice from attorneys, consultants and trade associations, including ABC, which will have a particularly onerous impact on any business without in-house counsel.
“No employer should have to wade through the final rule’s 446 pages to figure out whether they can safely get advice on what they can say to their employees,” said Swearingen. “The final rule is clearly an attempt by DOL to restrict employers from communicating the potential pros and cons of unionization with their employees and, along with the flawed ‘ambush election rule,’ is the administration’s attempt to achieve the goals of its failed ‘card check’ proposal by regulation.
ABC will be represented by its general counsel, Littler Mendelson P.C. and Cross, Gunter, Witherspoon & Galchus, P.C. in the case.