Auer v. Robbins Page 15

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Media for Auer v. Robbins

Audio Transcription for Oral Argument - December 10, 1996 in Auer v. Robbins

John B. Renick:

There are some distinctions as to when you have to pay the full salary.

The Secretary's interpretation is that generally, if you perform any work at all within a week, if you're a salaried employee, you shouldn't lok at the number of hours.

It shouldn't matter.

You're entitled to your full salary.

Then they draw the distinction and say, in a week in which no work is performed, that the employer need not pay the salary.

Antonin Scalia:

--Yes, but they also... the docking rule also applies.

A docking for a whole week is okay, even though you work.

John B. Renick:

Docking for a whole week of work is okay, according to the Secretary of Labor.

Antonin Scalia:

I don't understand that.

John B. Renick:

Well, we think that's even more so demonstrated by the fact that in 1992 the Secretary of Labor amended the regulation 541.5d that applies to public employees, so that the salary basis test, if you read it, doesn't even mean what it says for public employees, because the salary basis test says you're supposed to receive a predetermined amount of compensation every pay period that is not subject to reduction based on quality or quantity of work.

The Secretary of Labor, through a rulemaking procedure in '91, looked at the outcry that this caused in the public area, that there are many people who are exempt, but because of principles of public accountability are... under State laws are not able to be paid for time they don't work, so the Secretary amended the regulation to specifically allow a public employer to make deductions on an hour-by-hour basis from an otherwise exempt employee's salary and still allow them to claim that they're paid on a salary basis, which in and of itself is inconsistent.

So the salary basis test as applied to public employers no longer means what it says, and we say, why should there be this disciplinary deduction aspect maintained when the Secretary has already recognized that the variation in quantity of work does not destroy the salary basis.

I would also point out that, in the petition that was filed by the petitioners in this case, they took the position very clearly that this Court was required to defer to the interpretations of the Secretary of Labor, and this Court invited the views of the Government, asking the Solicitor General to file a brief prior to deciding whether or not to accept this case.

In that case, the Secretary of Labor's views were specifically expressed, and it was described in that brief as for the sole... for the very specific purpose of clarifying what the Secretary's position was on these interpretations, and the Secretary has specifically disagreed with the position taken by the petitioners.

But the petitioners continue nonetheless to have had... apparently have had a change of heart as to the deference owed to the Secretary of Labor under the circumstances, and we would submit that the... whether or not the Secretary's interpretations are agreeable to the petitioner should not determine whether or not they are entitled to deference in this case, and we believe, under the circumstances, that they clearly are, and as I said earlier, if you accept the Secretary's current clarification of what the interpretations mean, this case fits squarely within it, whether or not you get to the window of correction.

If there are no other questions, thank you.

William H. Rehnquist:

Thank you, Mr. Renick.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o'clock.