Wednesday, September 9, 2020

US Department of Labor 0-2 versus Southern District of New York


Not likely to see a high fastball any time soon, the US Department of Labor has seen Federal Courts strike down two of its recently promulgated regulations.

On August 3rd, a federal judge in the Southern District of New York struck down regulations released under the Families First Coronavirus Response Act ("FFCRA") which had narrowed the range of persons eligible for emergency paid leave.  The original regulations defined "health care provider" in two separate ways.  Relating to eligibility for leave, the definition was fairly narrow, but relating to which employers were exempt from offering leave, the same term was very broadly interpreted in the regulations.  The court invalidated this contradiction and instructed the agency to come back with something better.  (Parenthetically, a draft regulation was promulgated one month later, on September 3, 2020 and is available here.)

More recently, on September 8th, another Southern District of New York federal judge invalidated a significant number of provisions in the Department of Labor's recently promulgated "joint employer" rule under the Fair Labor Standards Act.  The court challenge had been raised by a number of state attorneys general (including the Pennsylvania attorney general) who had raised both procedural and substantive objections to the rule.  The attorneys general claimed that the promulgation had taken place in violation of the Administrative Procedures Act and that the rule itself contravened certain protections enacted by Congress under the FLSA.  The court called the rule "arbitrary and capricious" which is just about the meanest thing you can say about a rule.

Parenthetically, this is not the first time this administration has been castigated by the courts for haphazard rulemaking.  Even the United States Supreme Court got into the action in last term's Kisor v. Wilkie, 139 S.Ct. 2400 (2019) invalidating the administration's attempt to rescind DACA.


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