Florida Employers: Reading the Regulatory Tea Leaves after Loper Bright

Where things stand

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), eliminated Chevron deference. For forty years, Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), required courts to follow a two-step test: (1) determine whether Congress had spoken clearly on the disputed point, and (2) if the statute was ambiguous, accept any reasonable interpretation offered by the administering agency. This framework mattered because it allowed agencies such as the Department of Labor or the EEOC to fill statutory gaps, providing employers nationwide with a consistent rulebook even when judges might interpret the law differently. Within the Loper Bright opinion, the Court preserved the idea that the judiciary should afford “respect” to agency interpretation, as in Skidmore v. Swift & Co., 323 U.S. 134 (1944), but otherwise the opinion provided little guidance to judicial consideration of agency interpretation. Lower courts have filled that vacuum in three very different ways.

A three-track landscape

The Ninth Circuit has treated Skidmore as fully intact. In Lopez v. Garland, No. 23-870 (9th Cir. Sept. 11 2024), the court declined to “defer” but still gave “due respect” to the Board of Immigration Appeals because its reasoning was thorough, consistent, and persuasive.  

The Fourth Circuit has taken a similar view. In Nicoletti v. Bayless, No. 24-6012, slip op. at 3 (4th Cir. Jan. 13, 2025) (citation unavailable), the panel vacated a district court judgment that had leaned on Chevron and told the court to evaluate the Bureau of Prisons' interpretation under Skidmore’s “power to persuade.”

The Fifth Circuit is moving in the opposite direction. In Mayfield v. United States Department of Labor, No. 23-50724, slip op. at 12 (5th Cir. Sept. 11, 2024) (citation unavailable), the court questioned whether Skidmore survives at all, reasoning that if an agency's view is the best reading, it needs no deference. If it is not, courts must reject it outright.

What this means for employers headquartered in Florida

Florida sits in the Eleventh Circuit, which has not yet issued a precedential opinion squarely addressing Skidmore after Loper Bright. Until it does, regulatory disputes filed in federal court here could borrow analysis from any of the three tracks above, creating genuine forum uncertainty for multi-state companies.

For example, the salary-level rules under the Fair Labor Standards Act that the Department of Labor defends in Mayfield apply nationwide, including Florida. If an employer challenges a DOL wage-and-hour regulation in the Eleventh Circuit, the court might follow the Fifth Circuit’s strict approach or the Ninth and Fourth Circuits’ more flexible view. Similar unpredictability exists for EEOC guidance, OSHA interpretations, and NLRB policy statements that often drive employment litigation in this state.

Practical steps while the dust settles

• Treat every agency interpretation as persuasive authority only. Build compliance programs that rest on the plain statutory text as well as the regulations, and document why your reading is the “best” one.

• Monitor Eleventh Circuit developments closely. A single precedential opinion could reset the standard for the region overnight. Subscribe to docket alerts on pending appeals that raise Skidmore questions.

• When evaluating risk, weigh where a dispute may be filed. A multistate employer defending identical policies could face divergent outcomes depending on where the case lands.

• In contracts and internal policies, avoid language that slavishly tracks agency guidance without independent statutory support. This reduces exposure if a regulation later loses persuasive weight.

• Preserve all arguments in agency comment letters. Since courts will scrutinize statutory text more aggressively, the administrative record should demonstrate that your statutory reading was aired during rulemaking.

Key takeaway

With Chevron gone, agency deference is no longer a one-size-fits-all concept. Until the Eleventh Circuit clarifies its position, Florida employers must assume that a regulation’s interpretation is only as strong as the persuasive reasoning supporting it. Align compliance strategies with the statutory text first, then evaluate how much to rely on agency gloss in each operational area.