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Beltway Buzz, July 12, 2019

Secretary of Labor Resigns. On July 12, 2019, Alexander Acosta resigned as Secretary of Labor amid renewed scrutiny of his handling of criminal charges against Jeffrey Epstein while serving as the U.S. attorney for the Southern District of Florida from 2005 to 2009. His resignation will be effective on July 19, 2019. Deputy Labor Secretary Patrick Pizzella will become acting secretary of labor. This is obviously a significant development, and the Buzz will be watching how this development will impact the U.S. Department of Labor’s (DOL) policy agenda.

Supreme Court Keeps Auer, but Dilutes Its Power

On June 26, 2019, in Kisor v. Wilkie, the Supreme Court of the United States declined to overrule its prior decisions in Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). These cases introduced the practice of judicial deference to a federal agency’s interpretation of an ambiguous regulation. Many courts and scholars criticize Auer deference for various reasons and believed that the Supreme Court’s decision in Kisor would overrule Auer. Instead, the Court upheld the longstanding precedent, but imposed new “guidance” on when to apply Auer deference.

Supreme Court Kisor Decision Has Implications for Employers

Yesterday, the United States Supreme Court issued a decision in Kisor v. Wilkie, a case seeking to overturn prior precedent requiring deference to federal agencies’ interpretations of their regulations. The case involved a challenge by a military veteran of the Department of Veterans Affairs interpretation of regulations regarding benefits, but has important implications for employers. Specifically, the Court’s upholding of so-called Auer deference means federal agencies, such as the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), and the National Labor Relations Board (NLRB) can continue to issue informal guidance documents with the knowledge that courts will likely defer to them in interpreting the laws they discuss.

U.S. Supreme Court Upholds Agency-Deference Under Auer, But Weakened Doctrine Emerges

By the thinnest of margins, a majority of the U.S. Supreme Court has declined to overrule the so-called Auer (or Seminole Rock) deference doctrine, under which courts defer to an agency’s reasonable interpretation of its own ambiguous regulation. Kisor v. Wilkie, No. 18-15, 2019 U.S. LEXIS 4397 (June 26, 2019).

Fox (Mostly) Remains In The Henhouse: SCOTUS Says Agencies (Sort Of) Know Best

By a 9-0 vote, the U.S. Supreme Court ruled today that by and large, the courts should continue deferring to a federal agency’s reasonable interpretation of its own ambiguous regulations, leaving a good deal of power in the hands of agencies despite an outcry that this doctrine interferes with governmental separation of powers. In the last workplace law decision of the Supreme Court’s term, it also ruled stare decisis cuts strongly against overruling Auer and that the Court would need a particularly “special justification” to reverse Auer. Although the underlying case was not employment-related, today’s decision in Kisor v. Wilkie could have far reaching impact on employers and workplace law compliance.

Beltway Buzz, June 28, 2019

IRAPs Arrive. On June 24, 2019, the U.S. Department of Labor’s (DOL) Employment and Training Administration issued a notice of proposed rulemaking (NPRM) “to advance the development of high-quality, industry-recognized apprenticeship programs (IRAPs).” The regulations implement President Trump’s 2017 executive order titled Expanding Apprenticeships in America.

Department of Labor Releases Proposed Rule for Industry-Recognized Apprenticeship Programs

On June 24, 2019, the Department of Labor made public its long-awaited proposed rule establishing a process for DOL to advance the development of Industry-Recognized Apprenticeship Programs (IRAPs). On the same day, DOL announced that it was awarding over $183 million in grants for developing and expanding apprenticeship programs to educational institutions partnering with businesses that match funding, and an additional $100 million to expand apprenticeships and help close the “skills gap.” The Department is expected to issue further details on IRAP requirements, and an application for entities seeking to be recognized as an accreditor of IRAPs shortly.

Beltway Buzz, June 21, 2019

Board Rules on Union Access. Late last week, the National Labor Relations Board issued a decision involving the balancing of employees’ statutory right to organize with employers’ private property rights. In the case, the Board overruled previous decisions that required employers to permit nonemployee union organizers onto portions of their property open to the public—such as cafeterias and restaurants—as long as they weren’t disruptive.

Department of Labor Updates Notification of Employee Rights Under Federal Labor Law Poster

The Department of Labor has announced updates to the Notification of Employee Rights Under Federal Labor Law poster, required to be posted (in 11×17 format) by federal contractors and subcontractors pursuant to Executive Order 13496.

Updates Notification of Employee Rights Under Federal Labor Law Poster

The Department of Labor has announced updates to the Notification of Employee Rights Under Federal Labor Law poster, required to be posted (in 11×17 format) by federal contractors and subcontractors pursuant to Executive Order 13496.