Supreme Court Decision on DOL Rule Change Relaxes Requirements for Agency Rulemaking

Detroit SHRM


By: Miriam L. Rosen



On March 9, the U.S. Supreme Court issued a unanimous decision in Perez v. Mortgage Bankers Association, 575 U.S. ___ (2015) that relaxes the requirements for federal agencies changing interpretations of the regulations they enforce.

Background Facts

In 2010, the U.S. Department of Labor (“DOL”) issued an “Administrator Interpretation” that reversed its longstanding position on the exempt status of mortgage loan officers.  In a series of Wage Hour Opinion Letters, the DOL had indicated that mortgage loan officers were exempt administrative employees.   However, in 2010, the DOL issued an Administrator’s Interpretation stating that most mortgage loan officers did not qualify for the administrative exemption to the Fair Labor Standard Act’s overtime requirement and should now be considered non-exempt.

The Mortgage Bankers Association (“MBA”), a real estate finance industry group, challenged the DOL’s new interpretation by questioning the agency’s ability to change its position without formal rulemaking. The MBA argued that in order to make such a significant change in interpretation the DOL had to comply with formal rule-making requirements under the federal Administrative Procedure Act. The MBA asserted that the DOL had not complied with the process because it did not hold a notice-and-comment period during which interested parties could express opinions prior to any change in the agency’s interpretation regarding the mortgage loan officers’ exempt status. In an initial victory, the D.C. Circuit Court of Appeals agreed with the MBA and vacated the DOL’s Administrator Interpretation.

On appeal to the Supreme Court, the DOL argued that the D.C. Circuit’s opinion—that notice-and-comment rulemaking is required before any significant change to a rule that interprets a regulation—is inconsistent with the flexibility that Congress give  agencies with respect to the interpretive rules related to the regulations the agencies’ enforce.   The Supreme Court agreed with the DOL holding that federal agencies do not have to engage in formal rulemaking before making changes—even significant changes—to their rules interpreting federal regulations.

What does this decision mean for employers?

This decision means that federal agencies can make changes—potentially significant—without prior notice to existing agency rules and guidance as well as agency policies, procedures, and practices.  In a period of aggressive agency enforcement activity, employers relying on federal agency guidance in implementing employment policies and making strategic decisions must carefully monitor the activity of agencies, such as the DOL, NLRB, and EEOC, to ensure that they are not relying on outdated authority that no longer reflects those agencies’ positions.

This article was written by Miriam L. Rosen, a member of the Legal Affairs Committee of Detroit SHRM, and Chair of the Labor and Employment Law Group at McDonald Hopkins.   She can be reached at at (248) 220-1342.

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