Regulation by Amicus: The Department of Labor's Policy Making in the Courts
This Article examines the practice of "regulation by amicus": that is, an agency’s attempt to mold statutory interpretation and establish policy by filing "friend of the court" briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs — in strategic and at times aggressive ways — to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary power and efficiency of agency amicus policy making on the one hand, with the harms this less transparent approach may inflict on fundamental democratic values such as public participation and separation of powers. The Article first puts the issue in empirical context by examining the nature and impact of the DOL’s amicus filings in 324 Fair Labor Standards Act cases from the Roosevelt through Obama administrations. To evaluate the normative implications of amicus policymaking, the piece then juxtaposes the especially active amicus strategies employed by the Bush administration — which manipulated deference principles to weaken worker protection laws — and the Obama administration — which increased amicus filings to revive enforcement of the Fair Labor Standards Act. This Article proposes an analytical framework for judicial review of agency amicus arguments that remains faithful to separation of powers — especially Congress’s purpose in passing remedial statutes like the FLSA. See Susan Bisom-Rapp's "Context Matters: A Reply to Professor Eisenberg" at http://ssrn.com/abstract=23935567.
Context Matters: A Reply to Professor Eisenberg
This invited response essay responds to Professor Deborah Eisenberg's article in the Florida Law Review, "Regulation by Amicus," which assesses U.S. Department of Labor efforts to influence statutory interpretation and effectuate public policy through the use of "friend-of-the-court" (amicus curiae) briefs in private litigation. Eisenberg focuses on the unconventional deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus briefs, the administration of President George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections, while President Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.This response places Professor Eisenberg's work in context in two ways. First it notes that the practice Eisenberg describes has arisen during a period of extreme political polarization and congressional gridlock. Given this context, it is not surprising that the Bush and Obama administrations would use unconventional means to enact their national political agendas. Indeed, scholars of workplace law should consider the Bush and Obama administrations as potential case studies for examining traditional and new forms of regulation.Second, this response argues that one must contextualize Eisenberg's article in light of the changing nature of work. The FLSA, which is a central focus of her article, was designed to protect those in standard employment relationships. Yet those in non-standard work – especially independent contractors and the self-employed – are increasing in number and often find themselves without the protective mantle of labor and employment law. To the extent our elected leaders refuse to legislate on their behalf, they enable, at least in part, the deregulation of segments of the labor market.
Contingent workers and contingent health: risks of a modern economy.
EMPLOYMENT ARRANGEMENTS IN WHICH THE WORKER has a nontraditional relationship with the worksite employer have come to be grouped together in recent years as “contingent” work. Throughout the 1970s and 1980s, as employers sought more flexibility, contingent employment arrangements became more common in the United States. From 1969 to 1993, the number of parttime workers nearly doubled, representing a quarter of all growth in the national workforce. From 1982 to 1990, employment in temporary agencies increased 10 times faster than did the workforce as a whole. During the 1980s, the use of independent contractors in coal mining and of contract company workers in agriculture doubled. The use of contingent workers has not been limited to the private sector: by 2006, the federal government was spending an estimated $400 billion per year on contractors. Since national data were first collected by the Department of Labor in 1995, contingent workers have consistently represented nearly one-third of the total workforce, reaching 43 million in 2005. However, because only those with fixed addresses are surveyed, this is likely an underestimate. Thus, contingent work has taken hold in the United States, bringing with it concerning implications for health. Contingent workers are a diverse group, ranging from wellcompensated independent financial consultants to lowskilled construction workers. The majority of the contingent workforce is white and aged 25 years or older; however, compared with workers in traditional arrangements, contingent workers are more likely to be young, female, black or Hispanic, and to have lower incomes and fewer benefits (Bureau of Labor Statistics Current Population Survey, http://www.bls .gov/cps/). One analysis of 2005 federal data found that 16% of contingent workers have family incomes less than $20 000, a proportion twice as high as that of noncontingent workers. For some contingent workers, such as day laborers and agency temporaryworkers, theproportionsurpassed20%.Only 13% of contingent workers (and 9% of those with low family incomes) had health insurance provided by their employer, compared with 72% of noncontingent workers. Earlier reports noted similar wage and benefit discrepancies. For instance, in 1999 the median weekly earnings for contingent workers were about half those of noncontingent workers; when limited to full-time workers, those with contingent arrangements earned 77% of the income of their noncontingent counterparts. Furthermore, some contingent workers are excluded, legally or effectively, from laws designed to protect workers—laws that were enacted in most cases before the increase in contingent work arrangements (TABLE). An increasing body of evidence suggests that contingent workers are at higher risk of work-related injury. For example, a systematic review of international (mainly European) peer-reviewed studies found that 7 of 13 reports showed an increased risk of occupational injuries among contingent workers. A subsequent study in Spain found contingent (including contract and temporary staffing agency) workers had more than 2 times the rate of fatal and nonfatal occupational injuries than noncontingent workers. In the United States, the rate of fatal work injuries among self-employed workers is more than twice the national average. A study of nurses caring for hospitalized patients with AIDS in 11 US cities found that temporary nurses had a needle-stick injury rate 1.65 times higher than that of staff nurses working in the same hospital units. In a 2004 US survey of day laborers—the majority of whom were undocumented immigrants—19% reported workrelated injuries that requiredmedical attention in thepastyear, compared with less than 5% in all private industries and approximately 6% in construction. Contingent workers may also be at greater risk of illness. By the late 1990s, contract workers conducted the majority of maintenance work at France’s state-owned nuclear power facilities, in the process receiving 80% of the collective annual radiation dose of all workers at the plants. In representative cross-sectional surveys of more than 15 000 European Union workers conducted in 1995 and 2000, contingent workers (including self-employed and temporary workers) tended to report higher levels of work-related fatigue, backache, and muscular pain than noncontingent workers. A Finnish study found that temporary employment was associated with 1.2 to 1.6 times higher all-cause mortality compared with permanent employment, and that workers who