Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “EPA Decision Could Curb DOL Wage Rulemaking, Experts Say,” by Max Kutner. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor could face limits to its regulatory authority, including around workers' wages and hours, after the U.S. Supreme Court on Thursday restricted the U.S. Environmental Protection Agency's ability to regulate greenhouse gas emissions from power plants, legal observers said.

A high court majority held in West Virginia et al. v. EPA et al. that under the "major questions" doctrine, the government must point to clear authorization from Congress to regulate and that "a vague statutory grant is not close to the sort of clear authorization required by our precedents."

The justices had not previously tackled the major questions doctrine, and Thursday's holding could restrict agencies including the DOL, observers said. The DOL's Wage and Hour Division is currently engaged in or planning rulemaking regarding prevailing wages, overtime and independent contractors.

The ruling seemed to depart from a different doctrine, the high court's 1984 holding in Chevron USA Inc. v. Natural Resources Defense Council Inc., that courts should defer to federal regulations. Courts have turned to Chevron in wage and hour cases.

"For a long time, courts have looked mainly through the lens of Chevron and other deference rulings," said Paul DeCamp of management-side firm Epstein Becker Green. "What the court did today was to bring together a series of cases it's decided over the years to, really in a bold way, put forth the major questions doctrine as a robust limitation on agency authority."

Thursday's ruling means "when an agency is undertaking activity that is of especially significant consequence to the economy, to industry, to stakeholders, to the public, that courts will look especially carefully to see whether there was a clear authorization in the statute for the actions taken," DeCamp said.

Showing a higher degree of authority from Congress for big regulatory actions might be easier for certain provisions in statutes than others, said DeCamp, a former Wage and Hour Division administrator under President George W. Bush.

For example, the Fair Labor Standards Act "gives the Department of Labor essentially carte blanche to define" an overtime exemption for executive, administrative and professional employees, DeCamp said. The agency is currently doing rulemaking regarding that carveout.

But there is not such a clear statement in all provisions of the FLSA or other statutes, DeCamp said.

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