In its June ruling in Kisor v. Wilkie, the U.S. Supreme Court attempted to clarify situations when regulatory agencies’ interpretations of their regulations are entitled to deference. In particular, it remains to be seen how Occupational Safety & Health Administration will respond to the court’s decision and what that will mean for employers.
OSHA inspectors currently have latitude in interpreting agency rules while doing workpace inspections. This ruling may lead to a flurry of new guidance documents—or it may not.
“Reasonable” Readings of Regulations: Not Overruled—But With Specified Limitations
On its face, the dispute in Kisor was fairly straightforward. The plaintiff, James Kisor, questioned the basis upon which an agency can interpret its own ambiguous regulations. Specifically, the case challenged the doctrine known as the “Auer deference,” which stems from the Supreme Court’s 1997 decision in Auer v. Robbins. In that case, the majority held that the judiciary should normally defer to an agency’s own interpretations of its rules when settling matters of law.
In writing the majority opinion, Justice Elena Kagan attempted to clarify and place limits on when the Auer deference is applicable. Noting that the limits on the Auer deference are not subject to a rigid test, she attempted to clear up some “mixed messages” of past Supreme Court decisions. The court provided the following guidelines:
- The regulation must actually be ambiguous.
- If ambiguity remains after “traditional tools” of construction are exhausted, the agency’s reading must be “reasonable.”
To determine whether the deference is appropriate:
- Courts must ensure the interpretation is one made by the agency. It must be the agency’s “authoritative” or “official position” and not just the opinion of a compliance officer, an area director, or the person arguing the case.
- The interpretation must implicate the agency’s expertise on the subject matter.
- The interpretation must be a result of the agency’s substantive reading of the rule and must reflect “fair and considered judgment.”
Possible OSHA Responses
Almost immediately, court watchers and constitutional scholars began debating the merits and the potential effects of the court’s decision on future disputes. For employers, however, the ruling poses a very straightforward question: How will government agencies respond to this guidance (or lack thereof)?
In the workplace safety arena, for example, OSHA has generally relied on the Auer deference in giving its inspectors relatively wide latitude when interpreting its various regulations. However, as Justice Kagan noted in the majority opinion, deference should only be given when the interpretation is that of the agency not merely the opinion of individuals.
Therefore, where existing, clear guidance is lacking (e.g., in the form of field manuals or previously issued letters of interpretation), the agency and its agents should lose their latitude to determine the practical application of its existing policies in new or unique circumstances.
Looking ahead, how will OSHA or any other federal agency respond to Kisor? It is still early in the game, but OSHA’s response will likely go one of two ways: it will either publish a flurry of updates to its field manuals and issue an increasing number of letters of interpretations in an attempt to ensure deference to its interpretations—or it will do nothing.
If OSHA issues new guidance, the primary benefit of such action to the agency and employers is predictability. Put simply, where policies are most clear, the likelihood of disputes between the agency and the individuals and entities it regulates is significantly lowered.
The downside of this strategy is that by creating specific guidance, the agency may limit its alternatives in the face of new or emerging circumstances, science, technology, or workplace practices. In issuing its decision in Kisor, the Supreme Court may have been attempting to have it both ways: upholding the Auer deference while poking holes in its structure.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jane Heidingsfelder is a partner in Jones Walker LLP’s Labor & Employment Practice Group. In addition to her traditional employment practice, she has extensive experience representing clients in a wide array of industries before OSHA, the Mine Safety & Health Administration, and the Chemical Safety Board.