As we reported last month, the DOL was considering what to do with the enjoined persuader rules, new regulations that would have drastically changed the interpretation of the advice exemption to the LMRDA reporting requirements.  In sum, the new rules effectively narrowed the advice exemption to require reporting of a number of activities that had clearly fell within the exemption for some 50 years.

Earlier this week, the Department of Labor published a notice of its intent to rescind the persuader rule:  Rescission of Rule Interpreting Advice Exemption, 82 Federal Register 26877 (June 12, 2017)  The notice states the proposed rescission is “part of the Department’s continuing effort to fairly effectuate the reporting requirements of the LMRDA.”

The reason given behind the rescission is that it “it would ensure that any future changes to the Department’s interpretation would reflect additional consideration of possible alternative interpretations. . .and could address the concerns that have been raised by the reviewing courts.”  As to this latter consideration, the rule change was enjoined by a federal court last year and never went into effect.

Comments on the proposed rescission are due on or before August 11, 2017.  This action by the Department of Labor isn’t terribly surprising given the change in administration and the opposition to the rule change.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.