NT Lakis attorneys have filed a friend-of-the-court brief with the U.S. Supreme Court in an important case that raises the question of whether a court should give controlling deference to an agency’s interpretation of its own ambiguous regulation, even when that interpretation is set out in sub-regulatory guidance such as an informal policy statement or amicus curiae brief developed without any public input.

Under the longstanding but controversial “Auer” deference standard articulated by the Supreme Court in 1997, the federal courts will often give controlling deference to an agency’s sub-regulatory interpretation, even if it represents a change in policy that was never subject to notice-and-comment rulemaking. Our brief in Kisor v. Wilkie, No. 18-15 (brief filed January 31, 2019), argues that it is time for the Supreme Court to overrule Auer and the arbitrary application of Auer deference.  

Although the Kisor case involves an interpretation of an obscure federal regulation that has nothing to do with the workplace, by taking up the case the Supreme Court has signaled its intent to decide an issue that has direct and substantial implications for every employer that is subject to workplace regulatory requirements. 

Our brief contends that doing away with the rulemaking loophole permitted by Auer will encourage more precise regulations, which in turn will give employers more certainty about what they must do to be compliant. Scuttling Auer deference will also give the neutral courts, not an agency that may be pursuing a particular partisan agenda, the authority to interpret ambiguous regulations. 

A copy of our brief is available here.

Members of the Center for Workplace Compliance (CWC) can read more here.