U.S. Supreme Court rejects Cleveland County wage dispute

West Virginia Attorney General Patrick Morrisey (Image from C-SPAN.org)
  • The U.S. Supreme Court will not take up Cleveland County v. Conner, a case from North Carolina dealing with a dispute over an EMS worker's wages.
  • Critics of a lower court ruling had hoped the nation's highest court would resolve disputes over a legal doctrine called "Skidmore deference."

The U.S. Supreme Court will not use a Cleveland County wage dispute to take on the legal issue of “Skidmore deference.” The court announced Monday that it had rejected a request to hear a case titled Cleveland County v. Conner.

The decision means Sara Conner can continue to pursue her lawsuit against Cleveland County Emergency Medical Services. Originally filed in 2018, Conner’s federal suit contends that her EMS employers failed to pay her correctly.

In weeks when she worked overtime, the county EMS reduced her regular rate of pay, Conner argued. The pay structure created “overtime gap time.” Conner is suing to recover lost wages.

A trial court ruled in favor of the county, but the 4th U.S. Circuit Court of Appeals reversed course in January. Appellate judges’ ruling allowed Conner to move forward with her case.

Cleveland County asked the U.S. Supreme Court in June to intervene. Sixteen state governments filed a brief supporting that request. So did groups called the International Municipal Lawyers Association and the New Civil Liberties Alliance.

Critics argued that 4th Circuit judges had misused a legal doctrine known as “Skidmore deference.”

“It’s a concept so often repeated that it may strike as a truism: When construing a statute, a court must start with the text,” opened a friend-of-the-court brief from West Virginia Attorney General Patrick Morrisey. “But courts still sometimes can’t resist the temptation to ignore the words on the page to reach desired ends.”

“[T]he decision below is one more example of that mistaken indulgence,” Morrisey argued. “The Court should use this case to remind all courts that the tried-and-true lesson of statutory construction still holds. Text reigns.”

Morrisey critiqued the 4th Circuit’s “overreliance” on deference to the U.S. Department of Labor’s interpretation of federal law. Judges reached “a result that the text of the Fair Labor Standards Act cannot sustain,” he wrote.

“The court below recognized that the Act does not ‘include language’ permitting employees to recover for ‘overtime gap time,’” according to the brief.  “Yet the court marched ahead anyway — repeatedly relying on its own conception of the FLSA’s ‘purpose’ to fashion a new remedy without a statutory hook.”

“Perhaps worse still, the Court further applied something approaching blind deference to the Department of Labor’s spin on the statute even while recognizing that the ‘only other circuit’ to ‘squarely address’ this question gave no deference to that regulation precisely because it found ‘no statutory support,’” Morrisey added.

Attorneys general from Alabama, Alaska, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, Texas, and Utah signed onto the West Virginia brief.

The New Civil Liberties Alliance also criticized the 4th Circuit’s approach.

“NCLA is particularly disturbed by the Fourth Circuit’s decision to grant ‘considerable deference’ to the U.S. Department of Labor’s non-binding interpretation of the Fair Labor Standards Act without undertaking the basic step of determining whether that interpretation is consistent with the statutory language,” NCLA attorneys wrote. “The Fourth Circuit exhibited an all-too-frequent tendency among lower courts ‘to defer to the interpretive views of executive agencies, not as a matter of last resort but first.’”

“Skidmore deference” refers to a court precedent from 1944.

“The shorthand ‘Skidmore deference’ is somewhat of a misnomer because Skidmore v. Swift and Co. does not allow a court to truly defer, i.e., subordinate its independent judgment, to an agency’s non-binding interpretation of law,” the NCLA brief argued. “Rather, non-binding interpretations ‘are “entitled to respect” [under Skidmore], but only to the extent that they are persuasive.’”

The Supreme Court “unfailingly” subjects Skidmore cases to judicial analysis, NCLA asserted.

“Lower courts do not uniformly apply Skidmore in this manner,” according to the brief. “Some follow this Court’s independent judgment approach and accept only non-binding agency interpretations that they deem persuasive. Many others, however, subordinate their own judicial judgment in favor of agencies’ views based on the mistaken belief that Skidmore commands deference rather than respect.”

The U.S. Department of Labor believes “unpaid gap time” violates the Fair Labor Standards Act. The 4th Circuit granted the department “considerable deference,” without analyzing the law or making any kind of finding about whether the department’s interpretation proved persuasive.

But a 2013 case from the 2nd Circuit came to an opposite conclusion. Appellate judges in that dispute considered similar facts and found the Labor Department’s interpretation unpersuasive.

Now that the U.S. Supreme Court has rejected the Conner case, those two federal circuits will maintain contrasting approaches to the Skidmore precedent.