What Justices' Deference Opinion Means For Employers

Law360 (July 11, 2019, 11:24 AM EDT) -- The U.S. Supreme Court's June 26 decision in Kisor v. Wilkie[1] dramatically rewrote the rules for deference, retaining so-called Auer[2] deference in name only — with major implications for employers.

The New Administrative Deference

There are three traditional flavors of administrative deference: (1) Chevron[3] deference, applicable to regulations formally adopted under the Administrative Procedure Act; (2) Auer deference, applicable to informal interpretations of an agency's formal regulations; and (3) Skidmore[4] deference, applicable to anything an agency says, but "only to the extent that those interpretations have the 'power to persuade.'"[5]

Auer represented a sort of middle ground between the other two...

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