Alabama Attorney General joins opposition to new Obama administration labor rule

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Alabama Attorney General Luther Strange announced Wednesday the state is joining an effort against a regulation promulgated recently by the Obama administration, asking for an injunction against the U.S. Department of Labor’s new Persuader Advice Exemption Rule.

The rule, which is being called a “radical reinterpretation” of existing rules, would require greater disclosure of the communication between employers and outside counsel regarding union and worker organization activities.

“Small businesses make up over 90 percent of all businesses both in Alabama and across America,” said Attorney General Strange in a press release Wednesday afternoon. “These local job providers can least afford further unwarranted federal mandates that will erode their ability to compete. The new federal labor rule would reverse long-standing protections for confidential attorney-client communications and would place undue burdens on small business.”

Alabama joins Arizona, Arkansas, Michigan, Nevada, Oklahoma, South Carolina, Texas, Utah, and West Virginia in filing for the preliminary injunction.

The rule has been in the works for several years, drawing in the meantime ire from a variety of different parties, including the American Bar Association.

The ABA, in a 2011 letter to the Department, took several issues with the then-proposed rule, but pointed out it would be in violation of the professional standards of the Association, as well as many state bar associations.

“The Department’s Proposed Rule is inconsistent with ABA Model Rule of Professional Conduct 1.6 dealing with ‘Confidentiality of Information’ and with the many binding state rules of professional conduct that closely track the ABA Model Rule,” wrote the ABA. “The Proposed Rule could seriously undermine both the confidential client-lawyer relationship and the employers’ fundamental right to counsel; and The scope of the information that the Department’s Proposed Rule would require lawyers engaged in direct or indirect persuader activities to disclose encompasses a great deal of confidential financial information about clients that has no reasonable nexus to the “persuader activities” that the Act seeks to monitor.”

While AG Strange, and officials in the states fighting the rule say it’s an undue intrusion into what should be considered client-attorney privilege,  according to Secretary of Labor Thomas Perez, “The final rule …  is designed to ensure workers have the information they need to make informed decisions about exercising critical workplace rights such as whether to form a union or join a union.”

The amicus brief was filed in Arkansas federal district court.

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