Flip-flopping regulations and administrative agendas


Does a Flip-Flopping Department of Labor Deserve Any Deference?
The laws passed by Congress often contain significant gaps in how they are to be implemented, and contain ambiguous language subject to different interpretations.  These ambiguities are most often resolved through the adoption of administrative regulations and interpretive guidance.  The courts have traditionally given executive branch agencies deference in their interpretation of ambiguous laws they are charged with enforcing.  But should an agency’s interpretation of law receive any deference when the agency reverses itself with every change in administration?
For example, under Section 203(o) of the Fair Labor Standards Act, time spent “changing clothes” is not compensable time.  However, what constitutes “changing clothes” has shifted with changes between Democratic and Republican Administrations.  On June 16, 2010, the Department of Labor issued Administrator’s Interpretation No. 2010-2, reversing the prior interpretation of “changing clothes,” and expanding the scope of what may constitute compensable time to include time spent donning and doffing protective equipment.  But, the meaning of the law cannot be so arbitrary as to depend upon which political party is in power.  On February 19, 2013, the United States Supreme Court granted review in Sandifer v. United States Steel Corp., to decide once and for all what constitutes “changing clothes” within the meaning of the Fair Labor Standards Act.  Hopefully the Supreme Court will also address what level of deference – if any – flip-flopping administrative agencies such as the Department of Labor or National Labor Relations Board deserve.

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