In a landmark case that may have significant long term impact on reining in federal agency overreach, the Supreme Court of the United States in a vote of 6–3 overturned the so-called “Chevron Deference.”  This 40-year old bureaucracy-empowering judicial doctrine many critics contend has been a key factor in the unparalleled explosive growth and broad reach of the U.S. government in recent decades.  In essence, the doctrine gave deference to agency interpretations of their own regulations (no matter how unprecedented or afield from any statutory language); leaving the public/taxpayers to have to overcome this burden of proof in order to prevail in any legal matter. 

SCOTUS’ opinion will now help level the playing field, forcing agencies to carry more evidentiary and material information burden to win over challenges or to sustain their aggressive compliance polices over the states, businesses, and the general public. The new ruling came from two related cases taken-up together: Relentless Inc. v. Department of Commerce, and Loper Bright Enterprises v. Raimondo.

Background:
As noted in recent publications on the new decision, “[i]n the landmark ruling in Chevron v. Natural Resources Defense Council in 1984, the [Supreme] court held that while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find Congress has not directly addressed the precise question at issue and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”  In other words, the agency gets to determine how to interpret the statute as it sees fit.  At the time of the decision, no one anticipated the abuses of an unaccountable bureaucratic federal government leviathan intent on expanding its own authority and reach -- which has come to be called the “deep state.”   

The Supreme Court of the United States issued a unanimous decision requiring the National Labor Relations Board (NLRB) to prove it would likely succeed on the merits of a case before obtaining a preliminary injunction against employers. Under the Biden Administration, the Board has pursued 10(j) injunctions against employers based on flawed legal theories and often times unsubstantiated claims without the necessary showing of success. Essentially, SCOTUS ruled the NLRB must abide by the same rules that all other entities, including federal agencies and departments, must meet.

On February 14th, the District Court for the Eastern District of Texas heard oral arguments in a lawsuit filed by CDW (a group headed by ABC, that CIRT has supported, called “Coalition for a Democratic Workplace”).   The coalition is challenging the NLRB’s Joint Employer final rule. On February 22nd, the judge issued a brief order delaying the Rule’s effective date to March 11th. The ruling didn’t include the court’s reasoning for issuing the delay, but it is hoped by the coalition that it signals a potential decision favorable to the employer community.

The 2024 edition of the American Tort Reform Association (ATRA) “Tort Reform Outlook,” a compendium of the civil justice reform legislative activity expected in the states, has been released.  As a member of ATRA, the Round Table contributes to compiling this valuable resource.

For details see, attached ATRA Outlook.

The Equal Employment Opportunity Commission (EEOC) recently singled-out construction (specifically naming the industry) for what it claims is a lack of diversity.  The reference was included in the Commission’s latest , the official operating roadmap or strategic enforcement plan (SEP) that will guide the agency’s enforcement efforts through 2027.  In essence, the EEOC has put the entire industry on notice to expect more scrutiny and possibly increased enforcement and legal procedures to right what it considers racial, gender, and other inequities/imbalances in the composition or make-up of the workforce.  Of course, it has long been known to the industry that it does not attract large enough numbers of women and minorities to its workforce, but that is NOT necessarily due to discrimination or prejudices, but possibly to the nature of the work. Programs like ACE Mentor of America, Safety Week Initiative, and DEI efforts all address aspects of attracting, retaining, and developing a diverse workforce.