The new Persuader Advice Exemption Rule constitutes one of the most dramatic changes initiated by the National Labor Relations Board during the Obama administration. In overturning 50 years of precedent, a federal agency has issued new rules which require covered employers to report to the U.S. government certain activities. These new rules require both employers and lawyers to violate the attorney-client privilege that has been the bedrock of our legal system. Employers who undertake certain measures to improve employee morale will be required to report those activities to the U.S. Department of Labor, how much they spent, and who helped them on these matters. For example, if an employer modifies its employee handbook to improve policies to benefit employees, the employer must now report this activity to the federal government. If they fail to do so, the employers and those who give the advice are subject to not only civil penalties, but also criminal penalties. Yet these new rules were never passed by Congress, never voted on by a legislative body of any kind. They simply have been implemented by an administrative agency.
More importantly, these new regulations will increase the cost of doing business. As such, they will hurt small to medium size businesses the most and further erode their ability to compete. And remember, small businesses account for most of the jobs in the U.S. Given the state of the economy, this is not the time to put more constraints on businesses that may hamper job growth. The lawsuit filed in the U.S. District Court in Arkansas seeking to enjoin these new rules going into effect pending litigation is in the best interest of employers, employees and the public.
Unsurprisingly, Mark Herring has sided with unelected, unaccountable federal government bureaucrats in a direct attack on Virginia's economic lifeblood - small businesses. While attorneys general from 10 other states including our neighbor, West Virginia, chose to fight the new burden put on small businesses from the National Labor Relations Board's new labor rule that reverses long-standing protections for confidential attorney-client communications, Mark Herring failed to speak up.
Virginia needs an Attorney General that will fight for Virginia workers and businesses against the job killing overreach of the federal government. Virginia needs a new lawyer.
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