Today’s News & Commentary — June 27, 2019


Published June 27th, 2019 - 06.27.1910


The Supreme Court has declined an invitation to substantially weaken the administrative state.  In a divided decision, the Court chose not to overturn Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which require courts to defer to administrative agencies’ interpretations of their own regulations.   Nonetheless, yesterday’s result introduced a narrower test for deference to regulatory interpretation: now, courts must defer to agencies only if regulation is “genuinely ambiguous” and the agency’s interpretation is “reasonable” under the standards developed through administrative law precedent.  As the AFL-CIO outlined in its amicus brief, the Court’s opinion may have a significant impact on the American workforce, as the Occupational Health and Safety Administration, Mine Safety and Health Administration, and Department of Labor rely heavily on Auer deference in the execution of their duties.  This is especially true in the DoL’s Wage and Hour Division (or, as Jared would have it, Wage and Auer division), where interpretation of regulation undergirds hundreds of agency standards.

Exotic dancers in Colorado will have their day in court over wage theft and other employment claims.  In a decision handed down Monday, the Colorado Supreme Court ruled that a holding company that was not a signatory to an arbitration agreement may not rely on the doctrine of equitable estoppel to enforce that agreement without showing detrimental reliance.  The case began in 2017, when a group of dancers brought suit against the clubs where they perform, and against the parent companies of those clubs.  The plaintiffs, who alleged that they had been misclassified as independent contractors and denied wages and tips, were compelled into arbitration by the contracts they held with the club owners.  The Colorado Supreme Court, however, held that claims against the parent holding companies could not be compelled into arbitration, because those holding companies were not signatories to the arbitration agreement.   According to Towards Justice, the doctrine of equitable estoppel has been used by alleged joint employers, debt collectors, and other holding companies across the country to avoid class action litigation; Colorado’s decision could mark a turning point in similar arbitration cases.

SAG-Aftra continues to fight for restrictions on the type of information that can be published by websites like IMDb—now with additional support from LGBTQ-rights groups.  In 2016, California enacted AB 1687, a law that would require entertainment websites to remove certain personal information about actors if they are asked to do so.  Designed as an anti-age-discrimination measure, AB 1687 was immediately challenged by IMDb on constitutional grounds, and a federal judge found that the statute violated the First Amendment.  That case is now on appeal to the Ninth Circuit.  On Wednesday, a coalition of LGBTQ-rights groups threw their support behind the appeal, citing anger and concern over IMDb’s practice of publishing the birth names—or dead names—of trans actors without consent.

Sejal wrote yesterday about  Google’s policy of not allowing employees to criticize the company while marching under its logo at Pride.  In response, dozens of Google employees have signed an open letter asking that Google be excluded from San Francisco’s official Pride activities.  The non-profit behind San Francisco Pride has indicated that it will not act on the petition.

 

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