Welcome to Unit 2 on Skidmore Deference. Skidmore is a case that actually came out of Fort Worth, Texas. So, what were the facts here?
Well, the employees of the Swift & Company packing plant in Fort Worth filed a lawsuit under the Fair Labor Standards Act to recover for unpaid overtime. These were men who remained on call at the fire station three to four times a week in case of a fire. But they were not... paid for their waiting time or the time they were on call. And so they filed a lawsuit for that pay.
And the issue in this case involved a bulletin that had been issued by the Department of Labor that agreed with the employee's interpretation of the law that they should be paid. And the question was, how much weight, if any, should this bulletin get? The lower courts didn't consider it at all.
So when this case reached the Supreme Court, and the issue was whether their waiting time should be considered as working under the Act requiring overtime pay, the court had to decide how much weight, if any, to give to that Labor Department bulletin. So it didn't actually address the question of whether working triggers overtime pay. Instead, the court remanded the case for the lower courts to consider that bulletin from the Department of Labor. And what the court said was the weight that should be given to that bulletin depends on its persuasiveness. So the level of deference under Skidmore is based on the power to persuade.
And because this was a bulletin, we're talking about a document that does not have a force of law. That's not a legislative rule. The court also went on to specify a few specific factors that court should consider in assessing persuasiveness. And those factors include the thoroughness in the...
evident in the agency's consideration, the validity of the agency's reasoning, and the consistency of this interpretation with earlier and later pronouncements. And then there's this sort of catch-all factor at the end, which says basically in anything else that gives it the power to persuade. So there's three specific factors listed, but the overall test is persuasiveness, and the court could consider other things beyond these three factors in assessing persuasiveness. So this bulletin, as I mentioned, is a non-legislative rule. Specifically, it's an interpretive rule.
So if you think back to the week where we were going over the differences between legislative and non-legislative rules, the key difference is that legislative rules have the force of law and non-legislative rules don't. And we mentioned a few specific kinds of non-legislative rules, including interpretive rules, meaning rules where the agency isn't making you law, but... giving its interpretation of an existing law. So this is just a recap of what I just said.
So the key thing here to remember is when Skidmore applies, it applies when the court is reviewing the agency's interpretation of its authorizing statute. So you need to make sure, first of all, that this is the authorizing statute. That means the statute that gives the agency its power and authorizes it to interpret the statute. If it's in the same area of law, so the Department of Labor interpreting a labor act like the Fair Labor Standards Act, you can pretty safely assume that it is interpreting its authorizing statute.
But let's say we have the Department of Labor interpreting the tax code, right? That's something completely different. It's not what Congress authorized the Department of Labor to interpret, so there wouldn't be any deference in that situation.
So to trigger any kind of deference here in terms of... agency interpretations of statutes, you need to have the agency interpreting its own statute. And then to test whether Skidmore applies, the next question is, is that interpretation through a legislative rule or a non-legislative rule?
In other words, does that interpretation have the force of law or not? And Skidmore applies when that interpretation does not have the force of law. As we'll see in the next unit, Chevron applies when the agency's interpretation does have a force of law. So that concludes Unit 2 and we'll turn next to Unit 3 on Chevron deference.