Worker advocates watch with concern as legal standard that supported agencies is lost • Wisconsin Examiner

The U.S. Supreme Court’s decision last week to invalidate a 40-year-old legal rule governing how courts review federal regulations has sent protections for federal employees into uncharted territory.

Under the best of circumstances, legal experts said this week, the change could have only a small impact. But that’s far from a guarantee, and some observers see it as part of a larger effort to roll back federal agencies’ authority to establish new safeguards as new health and safety threats emerge.

In a pair of rulings issued on Friday, June 28, six Supreme Court conservatives overthrew the principle known as the Chevron rule, a precedent that gave federal agencies broad rulemaking authority.

The principle, which the Supreme Court established in 1984, held that courts should defer to federal agency decisions when deciding challenges to regulations because of ambiguities left by Congress in the federal statutes underpinning the regulations.

In striking down Chevron’s compliance, Chief Justice John Roberts said courts, as interpreters of the law, should apply their own legal reasoning to resolve “statutory ambiguities.”

Jordan Barab, a former federal security official and union safety director, said he fears judges, who are required to exercise “independent judgment,” will override agency scientists and other subject matter experts and follow their own instincts.

“I am afraid that it is not a question of whether the regulation will be implemented or not, but rather that the judges themselves will decide what will be included in the regulation,” Barab said in an interview.

A possible early test could be the Biden administration’s new rules announced on Tuesday protecting employees from extreme temperatures in the workplace.

Writing on his blog about occupational safetyBarab speculates on a number of results of the thermal rule under the new conditions.

The most drastic solution would be for the Court to rule that OSHA “has no authority to issue heat standards” because The 1970 Act on the Establishment of the Agency never mentioned heat. (Barab considers this unlikely, since the occupational hazard of overheating is “well known since the fourth day of Genesis.”)

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

“Maybe the judge doesn’t like the idea of ​​training workers, so that part is out,” he writes. “Maybe the judge will think it’s unfair to require business owners to pay workers during their rest breaks, or that OSHA requires more water per hour than workers actually need.”

On the other hand, he adds, “because Chevron deals with legal ambiguity rather than scientific fact, some legal experts believe that the demise of the Chevron Deference rule would not significantly impair OSHA’s ability to issue standards in most cases.”

Randy Rabinowitz, a lawyer who represents workers and unions in workplace health and safety cases, is among those who believe the impact of Chevron’s loss of respect will be minor.

The Supreme Court did not adopt the deference principle until 1984. But as she noted in the interview, that did not prevent OSHA from establishing certain safety rules.

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

OSHA has long been required to document in detail both the rationale and the enforceability of its regulations, she added, which can help the agency continue its work in the long term.

“The track record of supporting health and safety standards after rulemaking is remarkable,” Rabinowitz said. “Two of those cases went all the way to the Supreme Court, which established guidelines that OSHA continues to follow.”

With respect to labor law and union representation, a retired National Labor Relations Board official said the change could have a more significant impact on recent NLRB cases than on precedents set much earlier.

“I imagine the more immediate impact of this will be on current cases pending before the Board, particularly those cases in which (the NLRB’s general counsel) argued for expanding the law,” said Irv Gottschalk, the agency’s former regional director in Wisconsin, responding to questions via email.

Employers including Starbucks, Tesla and Amazon “seem more willing to aggressively challenge management decisions by appealing to the courts,” Gottschalk said, suggesting that court challenges to “even typical management decisions” seem more likely in the current environment.

“The real impact may be less to block the Board and more to block the courts,” Gottschalk said. “District Court judges may argue over time that eliminating Chevron’s compliance is untenable from a strictly workload perspective.”

Terri Gerstein, director of the Wagner Labor Initiative at New York University, is currently conducting a research project state laws protections for workers who can fill the gaps if federal law weakens.

“To the extent that there are state laws that still require state courts to defer to administrative agencies in states with progressive governance, that’s a really important avenue now that Chevron has been rejected at the federal level,” Gerstein said in an interview.

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

Despite Rabinowitz’s cautious optimism that Chevron’s loss of respect will have little impact on OSHA’s affairs, she said it’s part of a broader attack on administration regulation that worries her.

The Supreme Court dismissed a recently filed case seeking OSHA gutting as an improper delegation of power to Congress, she noted, but Justice Clarence Thomas dissented.

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