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.)
The new interpretation is an election year favor to organized labor, which has been requesting this change since 2011. It is wrong for a number of reasons, but two concerns are paramount.
First, as the Department has historically and correctly recognized, the advice exemption was intended to be read broadly. The Department recognizes that it has eliminated the exemption of advice regarding persuader activities. Someone at the Department must have forgotten that its role is to interpret and enforce the law, not to try to change it.
Second, the new interpretation singles out a specific kind of message—advice concerning union organizing—for burdensome reporting requirements. That violates the First Amendment’s free speech clause, which protects us all from government regulation of speech based on the message. Simply put, the Obama Administration has no right to reward its political allies, i.e., unions, by imposing a burden on otherwise lawful speech, simply because the Department views it as “anti-union.” I’m sure unions would be up in arms if a Republican Administration tried to do to them what the Obama Administration is trying to do to employers. The fact that one side of a political argument likes what the government is doing to silence its opponents but would not want the same done to them is usually a good sign that the First Amendment has been violated.
There are a couple of important takeaways here. First, we are fighting for employers because the new interpretation is unlawful and unfair. It is unlawful and unfair to target employers because they want to convey a message that their businesses should remain efficient and union-free. The government is not allowed, and has never been allowed, to burden speech just because it dislikes the viewpoint of the speaker. It is also unlawful and unfair to attempt to require clients and their lawyers to report confidential information about their relationship to the government. In fact, lawyers have an ethical obligation to resist such unlawful government attempts. That is why Shawe Rosenthal and Worklaw are fighting the new interpretation and will continue to protect the confidential relationship we have with our clients.
Second, because the new interpretation represents a drastic departure from current law, it is important for employers to associate with sophisticated labor and employment lawyers who are intimately familiar with the new interpretation to help avoid noncompliance. When you sue the government for doing something that is unlawful and unfair, you need to study the government’s action front to back and back to front. We have done exactly that.