ALF Amicus Brief Argues That Courts, Not Bureaucrats, Should Interpret Federal Regulations

September 13, 2021

Traveling nurses’ per-diem allowances are properly excluded from their regular rate of pay for overtime purposes.

The certiorari petition in AMN Services v. Clarke, No. 21-296, presents a Fair Labor Standards Act (FLSA) question about the relationship between per-diem payments for business-related travel and the calculation of overtime pay.  AMN Services, a healthcare temporary staffing company, reduces the amount of per-diem payments for traveling nurses who decline to work all of their contractually required shifts. The issue is whether such reduced per-diem payments nonetheless can be excluded from a employee’s regular rate of pay for overtime calculation purposes.  The Ninth Circuit held that the answer to this question is no.

The amicus brief that I filed today on behalf of the Atlantic Legal Foundation focuses on an important aspect of the Ninth Circuit’s opinion:  Whether the Ninth Circuit’s reliance on an internal, unauthoritative, Department of Labor (DOL) handbook to interpret an unambiguous DOL regulation relating to per-diem payments conflicted with Supreme Court judicial deference precedents under Kisor/Auer and Skidmore.  Under Kisor/Auer, an agency regulation must be “genuinely ambiguous,” and an agency interpretation of such a regulation must be reasonable and authoritative, to qualify for judicial deference.  AMN’s certiorari petition argues that the DOL regulation at issue is unambiguous.  Further, the handbook on which the Ninth Circuit relied to interpret the regulation expressly cautions readers that it should not be used as an interpretive device. A Law360 article, published on September 14, 2014, highlights ALF’s amicus brief.

Read more about the case on ALF’s website.


Read more Atlantic Legal Foundation amicus briefs authored by Larry Ebner


Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation