Paul DeCamp Quoted in "Agencies to Face Regulation Review Limits After Ruling"

The Labor Department and other government agencies may have to reach a higher bar before courts accept their views on regulations in the wake of a new U.S. Supreme Court ruling.

At issue in the June 26 Kisor v. Wilkie is a standard known as Auer deference, which determines whether courts should lean on agency interpretation of regulations.

Justice Neil Gorsuch warned in his concurring opinion that the majority ruling didn’t go far enough and called the Auer deference a “paper tiger.”

While business groups hoped that the conservative-majority high court would eliminate the standard all together, the ruling did weaken its reach, employment attorneys said.

Kagan’s opinion laid out a framework that tells courts not to reflexively rely on an agency’s interpretation of its own regulation. The limits include requiring courts to determine whether the regulatory text is ambiguous and whether an agency’s interpretation reflects its expertise. She wrote that deference is “rarely” warranted when an agency has changed its interpretation.

The ruling will affect the Labor Department, including in wage and hour and benefits cases; the Occupational Safety and Health Administration; and the Equal Employment Opportunity Commission. These agencies are involved in cases across the country where their interpretations of regulations are at play. …

A ‘Matter of Last Resort’

The ruling redefines how courts are supposed to apply agency interpretation, which makes Auer a “matter of last resort,” said employment attorney Paul DeCamp of Epstein Becker & Green. He predicted that fewer cases going forward would rely on agency deference.

DeCamp said that courts can’t use an agency’s interpretation of a regulation without first doing more work to prove that it should be used. He said in the past, courts had the ability to lean on Auer deference.