AUSTIN – Texas Attorney General Ken Paxton has joined with 17 other state leaders to ask the U.S. Department of Labor to permanently rescind the Persuader Rule.
The rule, which was put in place during the Obama administration, may cause businesses to spend more on legal fees and some feel it will undermine attorney-client privilege, a press release from Paxton's office states.
Before the Persuader Rule was passed, employers could hire consultants, including attorneys, who could give advice to employers about effective ways to discourage employees from voting in favor of unionizing. The Persuader Rule means that anyone speaking to workers discouraging unionizing must be disclosed to the government.
In November 2016, a federal Texas judge permanently blocked the Persuader Rule, which required that law firms publicly disclose union organization work they do for businesses.
As reported in Forbes last November, “The Labor Dept. 'persuader rule' was one of a slew of new rules and regulations the Obama administration has pushed through on behalf of its labor union supporters, making it easier and faster to conduct union elections, breaking the workforce into smaller bargaining units, and eroding the line between employers and contractors.”
Attorney Fernando Bustos of Lubbock Texas noted in an article published in May 2016 by the Lubbock Avalanche-Journal that the Persuader Rule damages attorney-client privilege.
“(The new rule) takes away the attorney-client privilege from businesses when they are faced with union-organizing drives,” Bustos was quoted in the article. “It requires lawyers who give advice to clients faced with union-organizing drives to disclose to the federal government the attorney-client relationship, how much the lawyer is being paid and what types of things are being discussed. If a lawyer has to do that for one client, he or she also has to disclose all the other labor and employment clients that they do business for and what types of works they do for them. All that violates the First Amendment right to freedom of speech in terms of having that speech protected as confidential between a lawyer and client."
In December 2016, a coalition of 10 states led by Texas won final judgment in the case, effectively stopping the Department of Labor from enforcing the Persuader Rule, a press release from Paxton's office states.
In a letter written by Paxton and 16 other state attorneys general to Labor Secretary Alexander Acosta on Aug. 11, Paxton says “The Persuader Rule imperils the attorney-client relationship by compelling attorneys to disclose the identities of their clients, as well as the terms, conditions, and scope of their representations,” and he noted “The Rule leaves employers two equally unacceptable options: have their lawyers act as ‘vending machines,’ offering purely technical responses to client inquiries, or have them provide useful legal advice that requires them to breach their duty of confidentiality.”
In June, the Department of Labor's Office of Labor-Management Standards published a notice saying it intends to rescind the rule. The 60-day period required for public comment ended on Aug. 11.