In an important case that deals with the level of deference courts should give to a federal agency’s interpretation of its own ambiguous regulations, the U.S. Supreme Court, relying on a precedent established more than two decades ago, has ruled that deference should continue to be given, but with significant caveats attached.
The 80-page ruling in Kisor v. Wilkie upholds the so-called “Auer deference” doctrine, first established by the Court in a 1997 case bearing the same name. At the same time, it articulates a number of limiting conditions as to when Auer deference is appropriate. Specifically, the Court in Kisor clarifies that Auer deference is warranted only where an agency’s interpretation amounts to its “official position” rather than an “ad hoc statement not reflecting the agency’s views,” is based on the agency’s substantive expertise, and reflects its “fair and considered judgment.”
Although the Kisor case involves an interpretation of an obscure regulation having nothing to do with workplace compliance, the High Court’s ruling reaffirming Auer deference is likely to have major workplace implications, especially for federal agencies like the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL), which relying on Auer often have sought to make and enforce policy through interpretations of their own regulations. Although the Supreme Court has retained Auer deference for now, lower courts likely will apply it much more carefully in light of the criteria set out in Kisor.
Worth noting, although the Justices were unanimous in remanding the case to the lower court, four Justices authored or joined concurring opinions that expressed strong doubts over Auer’s continued viability.
A copy of the opinion in Kisor v. Wilkie, Case No. 18-15 (U.S. June 26, 2019) is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.