that must be reported to include many activities that are ordinarily performed by an employer’s lawyers, such as drafting documents and communications that an employer may decide to provide to its employees, training supervisory employees and drafting employment policies. Limits Advice Exception. In turn, the new reporting requirements would significantly limit the advice exception. For example, even though a lawyer would be permitted to review employer-prepared campaign materials for legality, he or she would not be permitted to make suggestions to increase their persuasiveness. If the lawyer was hired to help make the materials more persuasive, or to make suggestions about campaign strategy, the entire agreement would have to be reported. Legal Challenges Several lawsuits were filed challenging the requirements on a number of different grounds.

In the first to be decided, a federal judge in Minnesota ruled that the requirements were likely improper because they encroached too far on the advice exception. However, that judge did not issue an injunction because he did not believe that the plaintiffs had established that they would be irreparably harmed while the case proceeded to a final determination. In the second case to be decided, a federal judge in Texas agreed with the Minnesota judge that the new requirements were likely improper. In the Texas case, however, the judge concluded that the plaintiffs there had established that they would be irreparably harmed if the new requirements were allowed to take effect.

He therefore issued a nationwide preliminary injunction against them pending further proceedings. Status of New Rules Because the new reporting requirements have been enjoined, they will not take effect on July 1, 2016 as originally scheduled. The DOL has not yet publicly announced whether it intends to appeal the injunction or wait until the cases progress to final judgment at the trial court level. Cautionary Persuader Reporting Reminder The preexisting reporting requirements remain in force. Therefore, agreements between consultants and employers to engage in direct persuader activities, such as having the consultant directly interact with employees with an object to persuade them about how to exercise their rights, must be reported by both the consultant and the employer.

However, employers that limit direct employee interaction to their own supervisors and managers do not have to report those activities. Employers that are targeted by a union organizing campaign or involved in collective bargaining or labor disputes should consult experienced counsel before engaging outside consultants to be sure that they are complying with the persuader reporting requirements that remain in effect. © 2016 Perkins Coie LLP CONTACTS Bruce Michael Cross Partner Seattle D +1.206.359.8453 Related Services Labor & Employment Law Retail & Consumer Products © 2016 Perkins Coie LLP .