Worker advocates watch warily after loss of legal standard that bolstered agencies

Detail of a mural inside the Madison Labor Temple building celebrating unions, worker rights and the fight for an eight-hour day. (Wisconsin Examiner photo)

Last week’s U.S. Supreme Court action throwing out a 40-year-old legal principle in how the courts assess federal regulations has sent federal worker protections into uncharted territory.

Under the best of circumstances, legal experts said this week, the change might have only a minor impact. But that’s far from guaranteed, and some observers see it as part of a larger project to roll back the power of federal agencies to enact new protections as new threats to health and safety arise.

In a pair of decisions issued Friday, June 28, the Court’s six conservatives overturned the principle known as Chevron deference — a precedent that gave federal agencies broad discretion in developing regulations.

The principle, which the Court enunciated in 1984, held that courts should defer to federal agencies when considering legal challenges to rules because of ambiguities that Congress left in federal laws undergirding regulations.

In erasing Chevron deference, Chief Justice John Roberts said that it should be up to the judiciary, as interpreters of the law, to apply their own legal reasoning to  resolve “statutory ambiguities.”

Jordan Barab, a former federal safety official and union safety director, said that he fears judges who are called upon to exercise “independent judgment” will disregard  agency scientists and other subject matter experts in favor of their own instincts.

“My fear is, it won’t be so much the regulation is in or the regulation is out, but the judges will take it upon themselves to decide what is in the regulation,” said Barab in an interview.

A possible early test could be new regulations the Biden administration announced Tuesday protecting workers from extreme heat on the job.

Writing on his occupational safety blog , Barab speculates on a range of outcomes for the heat rule under the new conditions.

The most drastic would be for the Court to rule that OSHA “has no authority to issue a heat standard” because the 1970 law creating the agency never mentioned heat. (Barab considers that unlikely because the occupational hazard of overheating has “been well known since the 4th day of Genesis.”)

The most likely outcome, he suggests in his blog post, could be that a judge rewrites the rule on fundamentally subjective grounds — “their experience cutting the lawn in the summer, or some seductive argument from the Chamber of Commerce” — and raises the 80-degree threshold that triggers the regulation to 85 or 90.

“Maybe the judge doesn’t like the idea of training workers, so that part is out,” he writes. “Maybe a judge decides that it isn’t fair to require business owners to pay workers during their rest break, or that OSHA is requiring more water per hour than workers actually need.”

On the other hand, he adds, “because Chevron deals with legal ambiguities, as opposed to scientific facts, some legal experts think that the demise of Chevron Deference will not significantly undermine OSHA’s ability to issue standards in most cases.”

Randy Rabinowitz, a lawyer who represents workers and unions in occupational safety and health matters, is one of those who think the impact of losing Chevron deference will be muted.

The Court didn’t adopt the deference principle until 1984. But that didn’t stop OSHA from being able to enact some safety rules, she observed in an interview.

“Most of the significant OSHA standard setting cases were decided before 1984,” Rabinowitz said. “And they were overwhelmingly decided in OSHA’s favor.”

OSHA has a long history of having to document in detail both the rationale and feasibility of its regulations, she added, which might help the agency continue its work in the long run.

“The track record on supporting its health and safety standards after rulemaking is extraordinary,” Rabinowitz said. “And two of those cases went to the Supreme Court, which laid down the guidelines that OSHA still follows.”

On cases involving labor law and union representation, a retired National Labor Relations Board official said the change might affect recent NLRB cases more acutely rather than precedents established longer ago.

“I would imagine the more immediate impact of this will be on current cases, pending Board decisions, particularly those cases where the [NLRB general counsel] has argued for expanding the law,” said Irv Gottschalk, a former Wisconsin regional director for the agency, responding to questions on email.

Employers including Starbucks, Tesla and Amazon “seem more willing to aggressively resist Board decisions by appealing to the courts,” Gottschalk said, and he suggested that in the current environment, court challenges of “even run of the mill Board decisions” seem more likely.

“The real impact may well be less to stymie the Board and more to clog the courts,” Gottschalk said. “District Court judges may well argue in time that eliminating Chevron deference is untenable strictly from a workload point of view.”

Terri Gerstein, director of the Wagner Labor Initiative at New York University, has an ongoing project looking at state laws protecting workers that can fill gaps when federal laws are weakened.

“To the extent that there are state laws that still require state courts to defer to administrative agencies in progressively led states, that is a really important path now that Chevron has been overruled at the federal level,” Gerstein said in an interview.

Rabinowitz said deference itself “is a double-edged sword.” Credited to the late conservative Justice William Scalia,  it was “developed in the Reagan administration so that the courts would have a basis for deferring to the Reagan administration’s deregulatory initiatives.”

Despite her cautious optimism that losing Chevron deference won’t have much effect on OSHA matters, Rabinowitz said it’s part of a broader attack on administrative regulation that concerns her.

The Supreme Court rejected a recent case that called for gutting OSHA as an improper delegation of congressional authority, she noted — but Justice Clarence Thomas dissented.

“I think you have to look at the totality,” Rabinowitz said. “We’re seeing a wholesale review of administrative law and regulatory policy by the Supreme Court.”

The post Worker advocates watch warily after loss of legal standard that bolstered agencies appeared first on Wisconsin Examiner .