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In 200-300 words please respond to this student’s discussion board post on Auer Deference. A substantive reply isn’t “Good job!” or “I agree!”—but rather a short responsive essay that either challenges the author on substantive grounds, or expands on the author’s original point. Opposing views are welcomed in this learning environment, so long as they are made respectfully. Skidmore v. Swift & Co., 323 U.S. 134 (1944)
“This case involved the employees of Swift and Company packing plant in Fort Worth, Texas legally challenging the company’s overtime pay policy under the Fair Labor Standards Act of 1938. It centered on the employees’ time spent on fire watch, outside their standard workday hours, for which the company had agreed to pay them a set amount of money. Fire watch required the employees to stay on the plant premises but they were permitted to use their time as they wanted including time spent sleeping. Unless there was a fire alarm which they then needed to respond to. The court refers to these time periods as working time and waiting time. The employees argued that the entirety of their time spent at the plant should count towards working hours, making them eligible for overtime pay. The District Court and the Court of Appeals rejected the worker’s claim. The question the Supreme Court had to answer was whether or not the waiting time could be considered work time under the Fair Labor Standards Act of 1938.
The Court decided unanimously to reverse the Appeals Court decision in their opinion authored by Justice Jackson. He wrote, “we hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time.” (Skidmore v. Swift & Co., 1944). The Court referenced guidelines and recommendations made by the Wage and Hours Administrator at the Department of Labor, authorized under the Fair Labor Standards Act. Justice Jackson acknowledged the Administrator’s expertise in this area stating “Pursuit of his duties has accumulated a considerable experience in the problems of ascertaining working time in employments involving periods of inactivity and a knowledge of the customs” (Skidmore v. Swift & Co., 1944). He reasoned that the administrator had the relevant knowledge to be trusted to make an informed decision in this matter on which the Court could rely and defer. This unanimous court decision became known as Skidmore deference and set the precedent for when the court should defer to administrative agencies’ recommendations on non-binding agreements. This differs from Chevron deference in that it refers to agency actions and interpretations that are a product of litigation rather than rulemaking (Skidmore Deference, n.d.).
I agree with the court’s finding in this case. It seems appropriate when reviewing the case of non-binding agreements between employers and employees to reference the information put forth by relevant administrative agencies and take into consideration their thoughts and standards. This case was brought before the Court in 1944 when the politics of the court were generally less polarized compared to the current day and I believe that is, in part, why they came to a unanimous decision. While the Court declined to review Skidmore deference in the case of Dupoint v Smiley (2018) Justice Niel Gorsuch made it clear in his response that he felt Skidmore was worth review, stating “a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions” (Skidmore Deference, n.d.). In the 2001 case United States v. Mead Corporation, the Court set limits to the application of Chevron Deference, but reaffirmed Skidmore deference stating it “allows a federal court to yield to an agency’s interpretation of a statute administered by the agency according to the agency’s ability to demonstrate persuasive reasoning” (United States V. Mead Corporation, n.d.). In the dissenting opinion authored by Justice Scalia, he stated that affirming Skidmore deference in this way will likely lead to agencies increasingly using informal rulemaking as a way to access judicial deference (United States V. Mead Corporation, n.d.). While Skidmore deference does not appear to be the focus of the deference ire the way Chevron is, I do think that based on the tone of these more recent cases it will likely be the subject of further arguments and possibly be more narrowly defined in the future”. Skidmore v. Swift & Co. 323 U.S. 134 (1944) https://supreme.justia.com/cases/federal/us/323/134/
Skidmore deference. (n.d.). Ballotpedia. Retrieved October 7, 2022, from https://ballotpedia.org/Skidmore_deference Links to an external site.
United States v. Mead Corporation. (n.d.). Ballotpedia. Retrieved October 7, 2022, from https://ballotpedia.org/United_States_v._Mead_Corporation

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