When Administrative Agencies Break the Laws They Enforce Because Even They Don’t Know What They Mean – What Good Is Their “Expertise”?

Many laws give authority to administrative agencies to actually interpret and enforce particular laws. For instance, the Equal Employment Opportunity Commission (“EEOC”) is empowered to interpret and to enforce federal laws prohibiting wrongful discrimination in employment. The National Labor Relations Board (“NLRB”) is similarly responsible for the interpretation and enforcement of federal labor laws.

Agencies such as the EEOC and the NLRB often issue interpretive guidelines. Those guidelines are supposed to explain what the specific laws the agency enforces mean and how those laws will be enforced. It is believed that because the administrative agency responsible for enforcing any particular law is expert in both that specific law, that agency’s interpretation of what the law means and how it should be enforced are entitled to deference by the courts, the legislatures and the public. Thus, for instance, courts often rely on an administrative agency’s interpretation of a statute rather than on the court’s own independent reading of the statute’s meaning.

Yet the almost universal deference to administrative agencies seems misplaced as this recent decision concerning the NLRB’s own violation of federal labor laws in dealing with its own union employees illustrates. It is also noted at Overlawyered and courtesy of Jon Nadler here.

A recent 43 page publication by the U.S. Chamber of Commerce entitled Theater of the Absurd briefly sketches the NLRB’s efforts to invalidate customary and generally accepted workplace policy statements in employee handbooks and manuals. As the study available here notes, the NLRB found that even employee handbooks it had essentially coauthored still failed to comply with federal labor laws while some of its directives to employers contradict those of other administrative agencies such as the EEOC.

It is difficult to obey and respect laws that even those who enact, interpret and enforce them can’t obey or explain. What a country!

© 3/1/2016 Lawrence B. Hunt of Hunt & Associates, P.C.  All rights reserved.

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