Unit 2: Skidmore Deference

Overview

• Originated from Skidmore v. Swift & Co. case in Fort Worth, Texas.
• Involves the Fair Labor Standards Act and unpaid overtime for employees on call.
• Central question: Should waiting time be considered as working for overtime pay?
• A Department of Labor bulletin supported the employees' interpretation of the law.

Key Points

Supreme Court's Consideration

• Issue: How much weight should be given to the Department of Labor's bulletin?
• Lower courts ignored the bulletin.
• Supreme Court remanded the case to consider the bulletin.

Skidmore Deference

• Based on the power to persuade rather than having the force of law.
• Applies to agency interpretations that are non-legislative rules (e.g., interpretive rules).

Factors for Persuasiveness

1. Thoroughness of the agency's consideration.
2. Validity of the agency's reasoning.
3. Consistency with earlier and later pronouncements.
4. Other factors that contribute to persuasiveness.

Legislative vs. Non-Legislative Rules

• Legislative Rules: Have the force of law.
• Non-Legislative Rules: Do not have the force of law (e.g., interpretive rules).

Application of Skidmore

• Applies when the court reviews the agency's interpretation of its authorizing statute.
• The agency must interpret its own statute, not unrelated areas.
• If the interpretation lacks the force of law, Skidmore deference may apply.

Conclusion

• Skidmore deference applies when agency interpretations do not have the force of law.
• Next Unit: Focus will be on Chevron deference, which applies when interpretations do have legal force.