Today’s News & Commentary — December 19, 2018


Published December 19th, 2018 - 12.19.185


In wage and Auer news, Bloomberg reports that a potential Supreme Court ruling upending “Auer deference” could magnify judicial oversight of federal agencies enforcing labor and employment law.  Named after the Supreme Court’s decision in Auer v. Robbins and dating back to the 1945 case Seminole Rock, Auer deference instructs courts to defer to agencies’ interpretations of their own ambiguous regulations unless “plainly erroneous or inconsistent with the regulation.”  Last week, the Court granted cert in Kisor v. Wilkie, which presents the question of whether Auer and Seminole Rock should be overruled.  The Department of Labor, and the Wage and Hour Division in particular, has benefited from Auer’s deferential standard in judicial review of its interpretations.  Commentators say that the EEOC, which cannot issue substantive regulations under Title VII, and the NLRB, which rarely engages in notice-and-comment rulemaking, have less to lose from a potential reversal.

Yesterday the Ninth Circuit heard oral argument in Hamidi v. SEIU Local 1000, a case brought by the National Right to Work Legal Defense Foundation on behalf of a group of California public employees challenging the union’s pre-Janus procedures allowing members to refrain from payment of the “non-chargeable” portion of agency fees.  Under the scheme, non-member employees had to annually opt out if they objected to paying the subset of fees the union otherwise used for activities beyond collective bargaining, like political advocacy.  The employees said that the complex choice architecture made it too onerous for them to opt out, but the district court dismissed the case based on Ninth Circuit precedent upholding a similar scheme in Mitchell v. Los Angeles United School District.  In light of Janus, the employees asked the Ninth Circuit to reverse Mitchell and return an estimated $100 million in fees to around 40,000 non-members.  At argument yesterday, the judges questioned why the Ninth Circuit should not just vacate the ruling below and allow the district court to rule again.  The union’s attorney argued that the district court’s ruling “could be issued again on remand,” but instead on the basis that the union relied in good faith on existing law when it collected the fees.

The NewsGuild of New York announced yesterday that Law360 editorial staffers voted 168-0 to ratify a first contract after two years of negotiations with parent company LexisNexis.  The four-year agreement establishes a salary floor of $50,000 and will immediately raise total salaries by 22 percent retroactive to January 1, 2018.  The contract also includes separate guaranteed paid sick leave and bereavement leave and successorship language that ensures the agreement would survive the company’s sale to a new owner.

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