auer et al robbins et argued december decided february held disciplinary deductions element salary basis test reflects permissible reading flsa applies public sector employees apparent secretary interpretation rendered unreasonable applied public sector employees absence non salary reduction means discipline peculiar needs quasi military law enforcement organizations secretary approach must therefore sustained given grant broad authority secretary defin delimi statutory exemption scope see chevron natural resources defense council respondents procedural objection secretary failureto amend disciplinary deduction rule wake garcia san antonio metropolitan transit authority raised first instance lawsuit must presented initially petition secretary amendatory rulemaking administrative procedure act pp secretary reasonably interpreted salary basis test met employee compensation may practical matter adjusted ways inconsistent test standard violated secretary says either actual practice making deductions employment policy creates significant likelihood regulation critical phrase subject comfortably bears meaning secretary assigns interpretation test plainly erroneous thus controlling robertson methow valley citizens council secretary interpretation rendered unworthy deference fact set forth amicus brief position adopted response litigation reason suspect reflect secretary fair considered judgment rule requiring flsa exemptions narrowly construed employers apply rule governs judicial interpretation statutes regulations limit secretary power resolve ambiguities regulations pp regulations entitle employers preserve exempt status employees subjected pay deductions inconsistent salary basis test reimbursing employees promising comply test future long deductions question either inadvertent made reasons lack work pp affirmed scalia delivered opinion unanimous notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions wash ington typographical formal errors order corrections may made preliminary print goes press francis bernard auer et petitioners david robbins et al writ certiorari appeals eighth circuit february justice scalia delivered opinion fair labor standards act flsa stat amended et exempts bona fide executive administrative professional employees overtime pay requirements case presents question whether secretary labor salary basis test determining employee exempt status reflects permissible reading statute applies public sector employees also consider whether secretary reasonably interpreted salary basis test deny employee salaried status thus grant overtime pay compensation may practical matter adjusted ways inconsistent test petitioners sergeants lieutenant employed louis police department brought suit respondents members louis board police commissioners seeking payment overtime pay claimed owed flsa respondents argued petitioners entitled pay came within exemption provided bona fide executive administrative professional employees regulations promulgated secretary one requirement exempt status employee earn specified minimum amount salary basis cfr according regulations employee considered paid salary basis employment agreement regularly receives pay period weekly less frequent basis predetermined amount constituting part compensation amount subject reduction variations quality quantity work performed petitioners contended salary basis test met case terms louis metropolitan police department manual compensation reduced variety disciplinary infractions related quality quantity work performed petitioners also claimed meet requirement exempt status duties executive administrative professional nature see district found petitioners paid salary basis though also satisfied duties criterion appeals affirmed part reversed part holding salary basis test duties test satisfied petitioners granted certiorari flsa grants secretary broad authority defin delimi scope exemption executive administrative professional employees secretary chosen approach exempt status requires employee paid salary basis turn requires compensation subject reduction variations quality quantity work performed cfr regulation goes carve exception rule enalties imposed infractions safety rules major significance clear rule embraces reductions pay disciplinary violations secretary view employees whose pay adjusted disciplinary reasons deserve exempt status general matter true executive administrative professional employees disciplined piecemeal deductions pay terminated demoted given restricted assignments flsa apply state local employees salary basis test adopted see ed fed reg salary basis test congress extended flsa coverage virtually public sector employees pub stat held exercise power consistent tenthamendment garcia san antonio metropolitan transit authority overruling national league cities usery salary basis test existed largely present form since see fed reg expressly applicable public sector employees see cfr respondents concede flsa may validly applied public sector also raise general challenge secretary reliance salary basis test contend however disciplinary deductions element salary basis test invalid public sector employees applied reflects unreasonable interpretation statutory exemption say ability adjust public sector employees pay even executive administrative professional employees pay means enforcing compliance work rules necessary component effective government public sector context contend fewer disciplinary alternatives deductions pay available congress directly spoken precise question issue must sustain secretary approach long based permissible construction statute chevron natural resources defense council respondents objections perhaps support different application salary basis test public employees conclude compel secretary view public employers differently situated regard disciplining employees require wholesale revision time tested rule simply said unreasonable agree seventh circuit principle public administration drawn attention makes imperative public sector employers ability toimpose disciplinary pay deductions individuals employed genuine executive administrative professional capacities mueller reich cert pending respondents appeal quasi military nature law enforcement agencies louis police department ability use full range disciplinary tools even relatively senior law enforcement personnel essential say maintaining control discipline organizations human lives line daily far clear however pay deduction form discipline example placing offending officer restricted duties necessary effect flsa entrusts matters judgment secretary federal courts say disciplinary deduction rule invalid applied law enforcement personnel fundamental objection respondents disciplinary deduction rule procedural one secretary failed give adequate consideration whether really makes sense apply rule public sector respondents amici make claim specific secretary failure revisit rule wake garcia decision arbitrary capricious violation administrative procedure act apa certainly true application disciplinary deduction rule public sector employees raises distinct issues may warrant secretary formal consideration much suggested veritable flood post garcia litigation public employers area see carpenter denver cert pending bankston illinois shockley newport atlanta professional firefighters union local atlanta respondents complaints failure amend disciplinary deduction rule raised first instance present suit may certainly asked parties respondents position disregard agency regulation contrary substantive requirements law one appears public record issued violation procedural prerequisites notice comment requirements apa claim regulation substantively unlawful even violates clear procedural prerequisite rather arbitrary capricious conduct amendatory rulemaking might well resulted change basis set aside agency action prior application relief addressed agency proper procedure pursuit respondents grievance set forth explicitly apa petition agency rulemaking denial must justified statement reasons appealed courts primary issue litigation unleashed application salary basis test public sector employees whether test employee pay subject disciplinary deductions whenever exists theoretical possibility deductions rather something suggest employee actually vulnerable pay reduced petitioners effect argue something close former view contend police manual nominally subjects department employees range disciplinary sanctions thatincludes disciplinary deductions pay single sergeant actually subjected disciplinary deduction subject deductions hence nonexempt flsa appeals rejected petitioners approach saying mere possibility improper deduction pay defeat employee salaried status practice making deductions exists appeals view one time incident disciplinary deduction taken unique circumstances defeat salaried status employees case sergeant question violated residency rule agreed reduction pay alternative termination employment requirement actual deductions also imposed earlier ruling eighth circuit mcdonnell omaha cert denied eleventh circuit case atlanta professional firefighters union local atlanta supra circuits rejected requirement yourman dinkins cert pending carpenter denver supra bankston illinois supra kinney district columbia cadc abshire county kern cert denied else imposed requirement actual deductions face vagueness ambiguity governing policy michigan assn governmental employees michigan dept corrections secretary labor amicus brief filed request interprets salary basis test todeny exempt status employees covered policy permits disciplinary deductions pay practical matter standard met secretary says either actual practice making deductions employment policy creates significant likelihood deductions secretary approach rejects wooden requirement actual deductions absence requires clear particularized policy one effectively communicates deductions made specified circumstances avoids imposition massive unanticipated overtime liability including possibility substantial liquidated damages see kinney district columbia supra situations vague broadly worded policy nominally applicable whole range personnel significantly likely invoked salaried employees salary basis test creature secretary regulations interpretation jurisprudence controlling unless plainly erroneous inconsistent regulation robertson methow valley citizens council quoting bowles seminole rock sand deferential standard easily met critical phrase subject comfortably bears meaning secretary assigns see american heritage dictionary ed def defining subject mean prone disposed giving example child subject colds webster new international dictionary ed def defining subject mean xposed liable prone disposed giving example country subject extreme heat secretary approach usefully illustrated reference case policy petitioners rely contained section police manual lists total possible rule violations specifies therange penalties associated department employees nominally covered manual specified penalties involve disciplinary deductions pay secretary view enough render petitioners pay subject disciplinary deductions within meaning salary basis test manual effectively communicate pay deductions anticipated form punishment employees petitioners category since perfectly possible give full effect every aspect manual without drawing inference sort statement available penalties applied solely petitioners matters different since applies petitioners employees unquestionably paid salary basis expressed availability disciplinary deductions may reference latter clear inference drawn likelihood sanction applied employees petitioners secretary approach likelihood established one time deduction sergeant pay unusual circumstances petitioners complain secretary interpretation comes us form legal brief circumstances case make unworthy deference secretary position sense post hoc rationalizatio advanced agency seeking defend past agency action attack bowen georgetown univ hospital simply reason suspect interpretation reflect agency fair considered judgment matter question petitioners also suggest secretary approach contravenes rule flsa exemptions narrowly construed employers withheld except persons plainly unmistakably within terms spirit arnold ben kanowsky rule governing judicial interpretation statutes regulations limitation secretary power resolve ambiguities regulations rule requiring secretary construe regulations narrowly make little sense since free write regulations broadly wishes subject limits imposed statute one small issue remains unresolved effect upon exempt status sergeant guzy officer violated residency requirement one time reduction pay secretary regulations provide deductions inconsistent salary basis test deduction guzy pay made circumstances indicating intention pay employee salary basis exemption flsa applicable entire period deductions made cfr conversely deduction permitted salary basis test inadvertent made reasons lack work exemption considered lost employer reimburses employee deductions promises comply future ibid petitioners contend initial condition latter provision enables employer take corrective action satisfied deduction guzy pay inadvertent inadvertent true enough plain language regulation sets inadverten ce made reasons lack work alternative grounds permitting corrective action petitioners also contend corrective provision unavailable respondents guzy yet reimbursed theresidency based deduction petitioners view reimbursement must made immediately upon discovery improper deduction made language regulation however address timing reimbursement secretary amicus brief informs us interpret require immediate payment respondents entitled preserve guzy exempt status complying corrective provision petitioners argued finally respondents failed carry affirmative burden establishing petitioners exempt status even secretary interpretation salary basis test since however argument inadequately preserved prior proceedings consider see adickes kress judgment appeals affirmed ordered footnotes respondents contend district lacked jurisdiction petitioners suit virtue eleventh amendment board police commissioners however share immunity state missouri governor appoints four board five members mo rev stat city ofst louis responsible board financial liabilities board subject state direction control respect therefore arm state eleventh amendment purposes hess port authority trans hudson lake country estates tahoe regional planning agency petitioners also contend additional sergeants actually subjected disciplinary deductions fact established portions record petitioners cite