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As we previously blogged, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit last year against the U.S. Department of Labor to block the DOL’s new interpretation of the advice exemption of the Labor Management Reporting and Disclosure Act (“LMRDA”), or the “persuader rule.”  And now, on Monday, June 12, 2017, the DOL announced a Notice of Proposed Rulemaking (“NPRM”) that proposes to rescind that new persuader rule interpretation.  Continue Reading We Sued the Department of Labor, and Now It Has Backtracked on the Persuader Rule

moneyCan prior salary justify a pay differential, or does it necessarily perpetuate sex-based pay discrimination? This was the subject of a recent Equal Pay Act (EPA) case before the U.S. Court of Appeals for the Ninth Circuit, in which the court bucked the recent trend of connecting prior salary with pay discrimination against females.

The EPA is a federal law that prohibits discrimination between employees on the basis of sex by paying employees of one sex less than employees of the opposite sex for equal work. It bears noting that the law applies to both sexes. Under the EPA, a Plaintiff must show that he or she is receiving different wages for “equal work.” If the Plaintiff makes that showing, the burden shifts to the employer to assert any of a number of affirmative defenses to explain the wage disparity, including: Continue Reading Is Setting Pay Based on Prior Salary the Same as Setting Pay Based on Sex?

gavel-1238036DOL’s Attempt to Interfere with Attorney-Client Relationships Blocked by Texas Court

Back in March of this year, the Department of Labor (DOL) tried to interfere with employers’ confidential communications with their attorneys.  Some law firms surrendered, ran, or hid, saying they would no longer have the kinds of conversations DOL wanted to interfere with.  Shawe Rosenthal, along with other Worklaw Network firms, stood up and fought.  We filed a lawsuit against the DOL to protect our clients’ interests and maintain the integrity of the attorney-client relationship.  Two similar lawsuits were filed against the DOL, and in one of them, employers can consider themselves victorious following an Order from a United States District Court in Texas holding the DOL’s new rule unlawful and setting it aside. Continue Reading DOL’s Attempt to Interfere with Attorney-Client Relationships Blocked by Texas Court

So, as I said in my last post, we have read this new persuader rule front to back and back to front. Last week, we told you why we are suing the government: the new interpretation is unfair and unlawful. This week, because the DOL went completely off the reservation, I thought we should poke a little fun at it for some of its ridiculous positions, so here goes.

DOL says it is interpreting the “advice” exemption, but it completely reconfigures the definition of persuasive activity. The statute refers to persuasive activity as activity with the direct or indirect object to persuade.  Somehow, DOL tangled itself in knots over this one. It now thinks that direct persuasive activity means the persuader has direct contact with employees and indirect persuasive activity means you do not have direct contact with employees. Do you see anything about that in the statute? Neither do I. That’s because it’s not there. The terms “direct” and “indirect” modify the objective, and have nothing to do with contact with employees. Obviously, you need to have contact with employees to directly or indirectly persuade them regarding their rights.

DOL’s rule conflates a principle put in place by the former rule, that persuaders need only report direct contact with employees, with the language in the statute, that activity with the direct or indirect object to persuade must be reported. In so doing, the DOL’s position is that all advice, which is expressly exempted from the reporting requirement, is now considered indirect persuasive activity that must be reported.

Continue Reading Bet You Didn’t Know that Your Interior Decorator is a Persuader

Although the government is often a thorn in the side of many of our clients, it is not every day that we decide to sue the government. Today was a different story.

On March 31, 2016, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit against the U.S. Department of Labor to block the Department’s new interpretation of the persuader rule. A copy of the complaint can be viewed here.

We discussed the new persuader rule in a previous post. To reiterate briefly, a federal law called the Labor-Management Reporting and Disclosure Act requires people who assist employers to fend off union organizing drives to file reports with the Department of Labor. The law contains an “advice exemption” under which employers and their attorneys do not have to report confidential information protected by the attorney-client relationship.  For decades, the Department has correctly held that the “advice exemption” applies to lawyers who advise clients concerning union organizing drives, as long as the lawyers do not communicate directly with employees.  Under the new interpretation, effective July 1, 2016, the Department has substantially narrowed the advice exemption.  (Actually, the Department would say it substantially narrowed the exemption.  I would say the Department completely eliminated it.) Continue Reading Shawe Rosenthal and Worklaw Just Sued the DOL