Yesterday the US Supreme Court heard arguments on the Department of Labor's shifting-sands position on whether an auto dealer's service advisors are exempt from overtime. After 30 years of saying they're exempt, DOL in 2011 pronounced them non-exempt. The case is Encino Motorcars v. Nevarro. My take-away is that nobody on the Court seriously thinks DOL has misread the statute, so under Chevron USA v. Natural Res. Def. Council the Court probably will defer to the DOL's most recent interpretation and uphold the 9th Circuit's decision that service advisors are non-exempt. That's a victory for the plaintiff-employee, and a huge victory for the DOL and other administrative agencies that want to change their formal positions on the meaning of statutes they administer.
Some choice extracts from the one hour argument:
JUSTICE KAGAN: "Wow. I really did not expect you to say that." [Responding to the government's statement that the new regulation omits any explanation of why DOL changed its position was because there was "an inadvertent mistake in drafting."]
JUSTICE BREYER: "But these people don’t work irregular hours and they’re not paid on commission. So why wouldn’t they be treated like a secretary?"
JUSTICE GINSBURG: "They clearly considered exactly this question. They made a judgment on it. They have effected that judgment within a notice-and-comments setting. I mean, if that’s not Chevron, what is?"
CHIEF JUSTICE ROBERTS: "I don't mean to be too particular, but if there's a squealing sound and it might be the fan belt, you're saying he's not going to open the hood and look at the fan belt?