Stuart Gerson Quoted in “High Court May Limit Federal Agency Regulatory Power”

SHRM

Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in SHRM, in “High Court May Limit Federal Agency Regulatory Power,” by Lisa Nagele-Piazza.

Following is an excerpt:

The U.S. Supreme Court recently heard oral arguments in a dispute over whether courts should defer to a federal regulatory agency’s interpretation of ambiguities in its regulations. Employers should watch this case because the outcome may affect labor and employment regulations. …

The effect of reversing—or even substantially limiting—the interpretive deference that agencies have under Auer would create a significant rebalancing of power between the agencies and those opposing regulatory action, said Stuart Gerson, an attorney with Epstein Becker Green in New York City and Washington, D.C. “This would be particularly true in highly regulated industries like health care and labor and employment,” he said, noting that the Department of Labor and other agencies “often avoid notice-and-comment rulemaking and issue a bevy of interpretive regulations and positions that suddenly appear in the midst of [legal] disputes and challenges.”

The Department of Justice recently instructed government attorneys that they may not rely on agency interpretations as legal authority. That is a significant policy change, but it doesn’t prevent courts from deferring to agency interpretations when statutes or regulations are ambiguous, Gerson explained.