|Jottings By An Employer's Lawyer|
Wednesday, September 01, 2010
Latest DOL Opinion On Donning and Doffing, Not So Fast - 6th Circuit Says
First, "an agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.For the fans of burden of proof (the most important vestige of employment at will), the Court addressed the question of whether section 3(o) is an exemption to the FLSA where the employer has the burden or a definition, where the employee has the burden. Although it does so, the Court really did not have to look much further than which section of the FLSA section 3(o) appears, is it § 203, Definitions or § 213, Exemptions?
As it appears in §203 not §213 the Court placed the burden on the employee, siding with the 5th and all other circuits which have decided the question, except for the 9th Circuit.
Up to this point the opinion is very employer friendly, but at this point it diverges for some other holdings:
If it does, given the somewhat limited nature of section 3(o) which requires a collective bargaining agreement to be applicable, the most important point could well be the deference given to agency interpretations. While it may always have been the case, it is now more clear than ever, particularly in the field of labor and employment law, regulatory agencies are much more bound to an Administration's viewpoint than stare decisis.
My own view is that is not a very good way to run a railroad, but no one has asked my opinion, nor are likely to give it much weight. It is however a fact of life, and if we are going to deal with it, we might as well know exactly what view the courts are going to give such changing views. My