CHRISTENSEN et al. v. HARRIS COUNTY et al.

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576 OCTOBER TERM, 1999
Syllabus
CHRISTENSEN et al. v. HARRIS COUNTY et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 98–1167. Argued February 23, 2000—Decided May 1, 2000
The Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. § 201(o), permits
States and their political subdivisions to compensate their employees
for overtime work by granting them compensatory time in lieu of cash
payment. If the employees do not use their accumulated compensatory
time, the employer must pay cash compensation under certain circum-
stances. §§ 207(o)(3)–(4). Fearing the consequences of having to pay
for accrued compensatory time, Harris County adopted a policy requir-
ing its employees to schedule time off in order to reduce the amount of
accrued time. Petitioners, county deputy sheriffs, sued, claiming that
the FLSA does not permit an employer to compel an employee to use
compensatory time in the absence of an agreement permitting the em-
ployer to do so. The District Court granted petitioners summary judg-
ment and entered a declaratory judgment that the policy violated the
FLSA. The Fifth Circuit reversed, holding that the FLSA did not
speak to the issue and thus did not prohibit the county from implement-
ing its policy.
Held: Nothing in the FLSA or its implementing regulations prohibits a
public employer from compelling the use of compensatory time. Peti-
tioners’ claim that § 207(o)(5) implicitly prohibits compelled use of com-
pensatory time in the absence of an agreement is unpersuasive. The
proposition that when a statute limits a thing to be done in a particular
mode, it includes a negative of any other mode, Raleigh & Gaston R.
Co. v. Reid, 13 Wall. 269, 270, does not resolve this case in petitioners’
favor. Section 207(o)(5) provides that an employee who requests to use
compensatory time must be permitted to do so unless the employer’s
operations would be unduly disrupted. The negative inference to be
drawn is only that an employer may not deny a request for a reason
other than that provided in § 207(o)(5). Section 207(o)(5) simply en-
sures that an employee receive some timely benefit for overtime work.
The FLSA’s nearby provisions reflect a similar concern. At bottom,
the best reading of the FLSA is that it ensures liquidation of compensa-
tory time; it says nothing about restricting an employer’s efforts to re-
quire employees to use the time. Because the statute is silent on this
issue and because the county’s policy is entirely compatible with
§ 207(o)(5), petitioners cannot, as § 216(b) requires, prove that the county

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577 Cite as: 529 U. S. 576 (2000)
Syllabus
has violated § 207. Two other features of the FLSA support this inter-
pretation: Employers are permitted to decrease the number of hours
that employees work, and employers also may cash out accumulated
compensatory time by paying the employee his regular hourly wage for
each hour accrued. The county’s policy merely involves doing both of
these steps at once. A Department of Labor opinion letter taking the
position that an employer may compel the use of compensatory time
only if the employee has agreed in advance to such a practice is not
entitled to deference under Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837. Interpretations such as those in
opinion letters—like interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of which lack the force
of law—do not warrant Chevron-style deference. They are “entitled to
respect,” but only to the extent that they are persuasive, Skidmore v.
Swift & Co., 323 U. S. 134, 140, which is not the case here. Chevron
deference does apply to an agency interpretation contained in a regula-
tion, but nothing in the Department of Labor’s regulation even arguably
requires that an employer’s compelled use policy must be included in an
agreement. And deference to an agency’s interpretation of its regula-
tion is warranted under Auer v. Robbins, 519 U. S. 452, 461, only when
the regulation’s language is ambiguous, which is not the case here.
Pp. 582–588.
158 F. 3d 241, affirmed.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Souter, JJ., joined, and in which
Scalia, J., joined except as to Part III. Souter, J., filed a concurring
opinion, post, p. 589. Scalia, J., filed an opinion concurring in part and
concurring in the judgment, post, p. 589. Stevens, J., filed a dissent-
ing opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 592.
Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined,
post, p. 596.
Michael T. Leibig argued the cause for petitioners. With
him on the briefs were Richard H. Cobb and Murray E.
Malakoff.
Matthew D. Roberts argued the cause for the United
States as amicus curiae urging reversal. On the brief
were Solicitor General Waxman, Deputy Solicitor General
Kneedler, Jonathan E. Nuechterlein, Allen H. Feldman, and
Edward D. Sieger.

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578 CHRISTENSEN v. HARRIS COUNTY
Opinion of the Court
Michael P. Fleming argued the cause for respondents.
With him on the brief were Michael A. Stafford, Bruce S.
Powers, and William John Bux.*
Justice Thomas delivered the opinion of the Court.
Under the Fair Labor Standards Act of 1938 (FLSA), 52
Stat. 1060, as amended, 29 U. S. C. § 201 et seq. (1994 ed. and
Supp. III), States and their political subdivisions may com-
pensate their employees for overtime by granting them com-
pensatory time or “comp time,” which entitles them to take
time off work with full pay. § 207(o). If the employees do
not use their accumulated compensatory time, the employer
is obligated to pay cash compensation under certain circum-
stances. §§ 207(o)(3)–(4). Fearing the fiscal consequences
of having to pay for accrued compensatory time, Harris
County adopted a policy requiring its employees to schedule
time off in order to reduce the amount of accrued compensa-
tory time. Employees of the Harris County Sheriff ’s De-
partment sued, claiming that the FLSA prohibits such a pol-
icy. The Court of Appeals rejected their claim. Finding
that nothing in the FLSA or its implementing regulations
prohibits an employer from compelling the use of compensa-
tory time, we affirm.
I
A
The FLSA generally provides that hourly employees who
work in excess of 40 hours per week must be compensated
*Briefs of amici curiae urging reversal were filed for the American
Federation of Labor and Congress of Industrial Organizations by Jona-
than P. Hiatt, Deborah Greenfield, James B. Coppess, and Laurence Gold;
for the International Association of Fire Fighters by Thomas A. Woodley;
and for the National Association of Police Organizations by Stephen R.
McSpadden.
Jeffrey A. Hollingsworth filed a brief for Spokane Valley Fire Protec-
tion District No. 1 as amicus curiae urging affirmance.

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579 Cite as: 529 U. S. 576 (2000)
Opinion of the Court
for the excess hours at a rate not less than 11 ⁄ 2 times their
regular hourly wage. § 207(a)(1). Although this require-
ment did not initially apply to public-sector employers, Con-
gress amended the FLSA to subject States and their political
subdivisions to its constraints, at first on a limited basis, see
Fair Labor Standards Amendments of 1966, Pub. L. 89–601,
§ 102(b), 80 Stat. 831 (extending the FLSA to certain catego-
ries of state and local employees), and then more broadly, see
Fair Labor Standards Amendments of 1974, Pub. L. 93–259,
§§ 6(a)(1)–(2), 88 Stat. 58–59 (extending the FLSA to all state
and local employees, save elected officials and their staffs).
States and their political subdivisions, however, did not feel
the full force of this latter extension until our decision in
Garcia v. San Antonio Metropolitan Transit Authority, 469
U. S. 528 (1985), which overruled our holding in National
League of Cities v. Usery, 426 U. S. 833 (1976), that the
FLSA could not constitutionally restrain traditional govern-
mental functions.
In the months following Garcia, Congress acted to miti-
gate the effects of applying the FLSA to States and their
political subdivisions, passing the Fair Labor Standards
Amendments of 1985, Pub. L. 99–150, 99 Stat. 787. See
generally Moreau v. Klevenhagen, 508 U. S. 22, 26 (1993).
Those amendments permit States and their political subdivi-
sions to compensate employees for overtime by granting
them compensatory time at a rate of 11 ⁄ 2 hours for every hour
worked. See 29 U. S. C. § 207(o)(1). To provide this form
of compensation, the employer must arrive at an agreement
or understanding with employees that compensatory time
will be granted instead of cash compensation.1 § 207(o)(2);
29 CFR § 553.23 (1999).
1 Such an agreement or understanding need not be formally reached and
memorialized in writing, but instead can be arrived at informally, such as
when an employee works overtime knowing that the employer rewards
overtime with compensatory time. See 29 CFR § 553.23(c)(1) (1999).

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580 CHRISTENSEN v. HARRIS COUNTY
Opinion of the Court
The FLSA expressly regulates some aspects of accrual
and preservation of compensatory time. For example, the
FLSA provides that an employer must honor an employee’s
request to use compensatory time within a “reasonable pe-
riod” of time following the request, so long as the use of the
compensatory time would not “unduly disrupt” the employ-
er’s operations. § 207(o)(5); 29 CFR § 553.25 (1999). The
FLSA also caps the number of compensatory time hours that
an employee may accrue. After an employee reaches that
maximum, the employer must pay cash compensation for ad-
ditional overtime hours worked. § 207(o)(3)(A). In addi-
tion, the FLSA permits the employer at any time to cancel
or “cash out” accrued compensatory time hours by paying
the employee cash compensation for unused compensatory
time. § 207(o)(3)(B); 29 CFR § 553.26(a) (1999). And the
FLSA entitles the employee to cash payment for any accrued
compensatory time remaining upon the termination of em-
ployment. § 207(o)(4).
B
Petitioners are 127 deputy sheriffs employed by respond-
ents Harris County, Texas, and its sheriff, Tommy B. Thomas
(collectively, Harris County). It is undisputed that each of
the petitioners individually agreed to accept compensatory
time, in lieu of cash, as compensation for overtime.
As petitioners accumulated compensatory time, Harris
County became concerned that it lacked the resources to pay
monetary compensation to employees who worked overtime
after reaching the statutory cap on compensatory time ac-
crual and to employees who left their jobs with sizable re-
serves of accrued time. As a result, the county began look-
ing for a way to reduce accumulated compensatory time. It
wrote to the United States Department of Labor’s Wage and
Hour Division, asking “whether the Sheriff may schedule
non-exempt employees to use or take compensatory time.”
Brief for Petitioners 18–19. The Acting Administrator of
the Division replied:

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581 Cite as: 529 U. S. 576 (2000)
Opinion of the Court
“[I]t is our position that a public employer may schedule
its nonexempt employees to use their accrued FLSA
compensatory time as directed if the prior agreement
specifically provides such a provision . . . .
“Absent such an agreement, it is our position that nei-
ther the statute nor the regulations permit an employer
to require an employee to use accrued compensatory
time.” Opinion Letter from Dept. of Labor, Wage and
Hour Div. (Sept. 14, 1992), 1992 WL 845100 (Opinion
Letter).
After receiving the letter, Harris County implemented a
policy under which the employees’ supervisor sets a maxi-
mum number of compensatory hours that may be accumu-
lated. When an employee’s stock of hours approaches that
maximum, the employee is advised of the maximum and is
asked to take steps to reduce accumulated compensatory
time. If the employee does not do so voluntarily, a supervi-
sor may order the employee to use his compensatory time at
specified times.
Petitioners sued, claiming that the county’s policy violates
the FLSA because § 207(o)(5)—which requires that an em-
ployer reasonably accommodate employee requests to use
compensatory time—provides the exclusive means of uti-
lizing accrued time in the absence of an agreement or un-
derstanding permitting some other method. The District
Court agreed, granting summary judgment for petitioners
and entering a declaratory judgment that the county’s policy
violated the FLSA. Moreau v. Harris County, 945 F. Supp.
1067 (SD Tex. 1996). The Court of Appeals for the Fifth
Circuit reversed, holding that the FLSA did not speak to the
issue and thus did not prohibit the county from implementing
its compensatory time policy. Moreau v. Harris County,
158 F. 3d 241 (1998). Judge Dennis concurred in part and
dissented in part, concluding that the employer could not
compel the employee to use compensatory time unless the
employee agreed to such an arrangement in advance. Id.,

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582 CHRISTENSEN v. HARRIS COUNTY
Opinion of the Court
at 247–251. We granted certiorari because the Courts of
Appeals are divided on the issue.2 528 U. S. 926 (1999).
II
Both parties, and the United States as amicus curiae, con-
cede that nothing in the FLSA expressly prohibits a State
or subdivision thereof from compelling employees to utilize
accrued compensatory time. Petitioners and the United
States, however, contend that the FLSA implicitly prohibits
such a practice in the absence of an agreement or under-
standing authorizing compelled use.3 Title 29 U. S. C.
§ 207(o)(5) provides:
“An employee . . .
“(A) who has accrued compensatory time off . . . , and
“(B) who has requested the use of such compensatory
time,
“shall be permitted by the employee’s employer to use
such time within a reasonable period after making the
request if the use of the compensatory time does not
unduly disrupt the operations of the public agency.”
Petitioners and the United States rely upon the canon ex-
pressio unius est exclusio alterius, contending that the ex-
press grant of control to employees to use compensatory
time, subject to the limitation regarding undue disruptions
2 Compare, e. g., Collins v. Lobdell, 188 F. 3d 1124, 1129–1130 (CA9 1999)
(upholding employer’s policy compelling compensatory time use), with
Heaton v. Moore, 43 F. 3d 1176, 1180–1181 (CA8 1994) (striking down pol-
icy compelling compensatory time use), cert. denied sub nom. Schriro v.
Heaton, 515 U. S. 1104 (1995).
3 We granted certiorari on the question “ ‘[w]hether a public agency gov-
erned by the compensatory time provisions of the Fair Labor Standards
Act of 1938, 29 U. S. C. § 207(o), may, absent a preexisting agreement, re-
quire its employees to use accrued compensatory time?’ ” 528 U. S. 926,
927 (1999). As such, we decide this case on the assumption that no agree-
ment or understanding exists between the employer and employees on the
issue of compelled use of compensatory time.

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583 Cite as: 529 U. S. 576 (2000)
Opinion of the Court
of workplace operations, implies that all other methods of
spending compensatory time are precluded.4
We find this reading unpersuasive. We accept the propo-
sition that “[w]hen a statute limits a thing to be done in a
particular mode, it includes a negative of any other mode.”
Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270 (1872).
But that canon does not resolve this case in petitioners’
favor. The “thing to be done” as defined by § 207(o)(5) is
not the expenditure of compensatory time, as petitioners
would have it. Instead, § 207(o)(5) is more properly read as
a minimal guarantee that an employee will be able to make
some use of compensatory time when he requests to use it.
As such, the proper expressio unius inference is that an em-
ployer may not, at least in the absence of an agreement, deny
an employee’s request to use compensatory time for a reason
other than that provided in § 207(o)(5). The canon’s applica-
tion simply does not prohibit an employer from telling an
employee to take the benefits of compensatory time by
scheduling time off work with full pay.
In other words, viewed in the context of the overall statu-
tory scheme, § 207(o)(5) is better read not as setting forth
the exclusive method by which compensatory time can be
used, but as setting up a safeguard to ensure that an em-
4 Justice Stevens asserts that the parties never make this argument.
See post, at 593, n. 1 (dissenting opinion). Although the United States
and petitioners fail to make their arguments in Latin, we believe a fair
reading of the briefs reveals reliance upon the expressio unius canon.
See Brief for United States as Amicus Curiae 16 (“Congress . . . iden-
tified only one circumstance in which an employer may exercise some
measure of control: when an employee requests the use of compensatory
time, the employer must allow such use within a reasonable period of time
except where the use would ‘unduly disrupt’ the employer’s operations.
29 U. S. C. 207(o)(5). If Congress had intended for employers to exercise
unilateral control over the use of compensatory time in other respects as
well, it presumably would have so provided”); Reply Brief for Petitioners
4–6 (contending that the FLSA explicitly provides methods for reducing
compensatory time and thus other means may not be used).

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584 CHRISTENSEN v. HARRIS COUNTY
Opinion of the Court
ployee will receive timely compensation for working over-
time. Section 207(o)(5) guarantees that, at the very mini-
mum, an employee will get to use his compensatory time
(i. e., take time off work with full pay) unless doing so would
disrupt the employer’s operations. And it is precisely this
concern over ensuring that employees can timely “liquidate”
compensatory time that the Secretary of Labor identified in
her own regulations governing § 207(o)(5):
“Compensatory time cannot be used as a means to
avoid statutory overtime compensation. An employee
has the right to use compensatory time earned and must
not be coerced to accept more compensatory time than
an employer can realistically and in good faith expect to
be able to grant within a reasonable period of his or
her making a request for use of such time.” 29 CFR
§ 553.25(b) (1999).
This reading is confirmed by nearby provisions of the
FLSA that reflect a similar concern for ensuring that the
employee receive some timely benefit for overtime work.
For example, § 207(o)(3)(A) provides that workers may not
accrue more than 240 or 480 hours of compensatory time, de-
pending upon the nature of the job. See also § 207(o)(2)(B)
(conditioning the employer’s ability to provide compensatory
time upon the employee not accruing compensatory time in
excess of the § 207(o)(3)(A) limits). Section 207(o)(3)(A) helps
guarantee that employees only accrue amounts of compensa-
tory time that they can reasonably use. After all, an em-
ployer does not need § 207(o)(3)(A)’s protection; it is free
at any time to reduce the number of hours accrued by ex-
changing them for cash payment, § 207(o)(3)(B), or by halt-
ing the accrual of compensatory time by paying cash compen-
sation for overtime work, 29 CFR § 553.26(a) (1999). Thus,
§ 207(o)(3)(A), like § 207(o)(5), reflects a concern that em-
ployees receive some timely benefit in exchange for over-
time work. Moreover, on petitioners’ view, the compensa-

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585 Cite as: 529 U. S. 576 (2000)
Opinion of the Court
tory time exception enacted by Congress in the wake of
Garcia would become a nullity when employees who refuse
to use compensatory time reach the statutory maximums on
accrual. Petitioners’ position would convert § 207(o)(3)(A)’s
shield into a sword, forcing employers to pay cash compen-
sation instead of providing compensatory time to employees
who work overtime.
At bottom, we think the better reading of § 207(o)(5) is
that it imposes a restriction upon an employer’s efforts to
prohibit the use of compensatory time when employees re-
quest to do so; that provision says nothing about restricting
an employer’s efforts to require employees to use compensa-
tory time. Because the statute is silent on this issue and
because Harris County’s policy is entirely compatible with
§ 207(o)(5), petitioners cannot, as they are required to do by
29 U. S. C. § 216(b), prove that Harris County has violated
§ 207.
Our interpretation of § 207(o)(5)—one that does not pro-
hibit employers from forcing employees to use compensatory
time—finds support in two other features of the FLSA.
First, employers remain free under the FLSA to decrease
the number of hours that employees work. An employer
may tell the employee to take off an afternoon, a day, or even
an entire week. Cf. Barrentine v. Arkansas-Best Freight
System, Inc., 450 U. S. 728, 739 (1981) (“[T]he FLSA was
designed . . . to ensure that each employee covered by the
Act . . . would be protected from the evil of overwork . . .”
(internal quotation marks and emphasis omitted)). Second,
the FLSA explicitly permits an employer to cash out accu-
mulated compensatory time by paying the employee his reg-
ular hourly wage for each hour accrued. § 207(o)(3)(B); 29
CFR § 553.27(a) (1999). Thus, under the FLSA an employer
is free to require an employee to take time off work, and an
employer is also free to use the money it would have paid in
wages to cash out accrued compensatory time. The com-
pelled use of compensatory time challenged in this case

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586 CHRISTENSEN v. HARRIS COUNTY
Opinion of the Court
merely involves doing both of these steps at once. It would
make little sense to interpret § 207(o)(5) to make the combi-
nation of the two steps unlawful when each independently
is lawful.5
III
In an attempt to avoid the conclusion that the FLSA does
not prohibit compelled use of compensatory time, petitioners
and the United States contend that we should defer to the
Department of Labor’s opinion letter, which takes the posi-
tion that an employer may compel the use of compensatory
time only if the employee has agreed in advance to such a
practice. Specifically, they argue that the agency opinion
letter is entitled to deference under our decision in Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837 (1984). In Chevron, we held that a court must give
5 Justice Stevens does not dispute this argument. In fact, he ex-
pressly endorses half of it. See post, at 594, 595 (employer free to cash
out compensatory time). Instead, Justice Stevens claims that we
“stumbl[e]” by failing to identify “the relevant general rule” that employ-
ees have “a statutory right to compensation for overtime work payable in
cash.” Post, at 592. We fail to do so only because the general rule is not
relevant to this case. Both parties to this case agreed that compensatory
time would be provided in lieu of cash and thus § 207(a)’s general require-
ment of cash compensation is supplanted. Petitioners and the United
States do assert that the requirement of cash compensation is relevant by
analogy. They claim that an employer cannot compel compensatory time
use because compensatory time should be treated like employee cash in
the bank—that is, under the exclusive control of the employee. But this
analogy is wholly inapt under the very terms of the FLSA. The FLSA
grants significant control to the employer over accrued compensatory
time. For example, the employer is free to buy out compensatory time
at any time by providing cash compensation. § 207(o)(3)(B); 29 CFR
§ 553.27(a) (1999). Additionally, an employer is free to deny any request
to use compensatory time when such use would unduly disrupt the em-
ployer’s operations. § 207(o)(5)(B); 29 CFR § 553.25(d) (1999). The cash
analogy is therefore directly undermined by unambiguous provisions of
the statute.

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Opinion of the Court
effect to an agency’s regulation containing a reasonable in-
terpretation of an ambiguous statute. Id., at 842–844.
Here, however, we confront an interpretation contained in
an opinion letter, not one arrived at after, for example, a
formal adjudication or notice-and-comment rulemaking. In-
terpretations such as those in opinion letters—like interpre-
tations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law—
do not warrant Chevron-style deference. See, e. g., Reno v.
Koray, 515 U. S. 50, 61 (1995) (internal agency guideline,
which is not “subject to the rigors of the Administrative Pro-
cedur[e] Act, including public notice and comment,” entitled
only to “some deference” (internal quotation marks omit-
ted)); EEOC v. Arabian American Oil Co., 499 U. S. 244,
256–258 (1991) (interpretative guidelines do not receive
Chevron deference); Martin v. Occupational Safety and
Health Review Comm’n, 499 U. S. 144, 157 (1991) (interpre-
tative rules and enforcement guidelines are “not entitled to
the same deference as norms that derive from the exercise
of the Secretary’s delegated lawmaking powers”). See gen-
erally 1 K. Davis & R. Pierce, Administrative Law Treatise
§ 3.5 (3d ed. 1994). Instead, interpretations contained in for-
mats such as opinion letters are “entitled to respect” under
our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140
(1944), but only to the extent that those interpretations have
the “power to persuade,” ibid. See Arabian American Oil
Co., supra, at 256–258. As explained above, we find unper-
suasive the agency’s interpretation of the statute at issue in
this case.
Of course, the framework of deference set forth in Chevron
does apply to an agency interpretation contained in a regula-
tion. But in this case the Department of Labor’s regulation
does not address the issue of compelled compensatory time.
The regulation provides only that “[t]he agreement or under-
standing [between the employer and employee] may include
other provisions governing the preservation, use, or cashing

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588 CHRISTENSEN v. HARRIS COUNTY
Opinion of the Court
out of compensatory time so long as these provisions are
consistent with [§ 207(o)].” 29 CFR § 553.23(a)(2) (1999)
(emphasis added). Nothing in the regulation even arguably
requires that an employer’s compelled use policy must be
included in an agreement. The text of the regulation itself
indicates that its command is permissive, not mandatory.
Seeking to overcome the regulation’s obvious meaning, the
United States asserts that the agency’s opinion letter inter-
preting the regulation should be given deference under our
decision in Auer v. Robbins, 519 U. S. 452 (1997). In Auer,
we held that an agency’s interpretation of its own regulation
is entitled to deference. Id., at 461. See also Bowles v.
Seminole Rock & Sand Co., 325 U. S. 410 (1945). But Auer
deference is warranted only when the language of the regula-
tion is ambiguous. The regulation in this case, however, is
not ambiguous—it is plainly permissive. To defer to the
agency’s position would be to permit the agency, under the
guise of interpreting a regulation, to create de facto a new
regulation. Because the regulation is not ambiguous on the
issue of compelled compensatory time, Auer deference is
unwarranted.
* * *
As we have noted, no relevant statutory provision ex-
pressly or implicitly prohibits Harris County from pursuing
its policy of forcing employees to utilize their compensatory
time. In its opinion letter siding with the petitioners, the
Department of Labor opined that “it is our position that nei-
ther the statute nor the regulations permit an employer to
require an employee to use accrued compensatory time.”
Opinion Letter (emphasis added). But this view is exactly
backwards. Unless the FLSA prohibits respondents from
adopting its policy, petitioners cannot show that Harris
County has violated the FLSA. And the FLSA contains
no such prohibition. The judgment of the Court of Appeals
is affirmed.
It is so ordered.

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589 Cite as: 529 U. S. 576 (2000)
Opinion of Scalia, J.
Justice Souter, concurring.
I join the opinion of the Court on the assumption that it
does not foreclose a reading of the Fair Labor Standards Act
of 1938 that allows the Secretary of Labor to issue regula-
tions limiting forced use.
Justice Scalia, concurring in part and concurring in the
judgment.
I join the judgment of the Court and all of its opinion ex-
cept Part III, which declines to give effect to the position of
the Department of Labor in this case because its opinion let-
ter is entitled only to so-called “Skidmore deference,” see
Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). Skid-
more deference to authoritative agency views is an anach-
ronism, dating from an era in which we declined to give
agency interpretations (including interpretive regulations,
as opposed to “legislative rules”) authoritative effect. See
EEOC v. Arabian American Oil Co., 499 U. S. 244, 259
(1991) (Scalia, J., concurring in part and concurring in judg-
ment). This former judicial attitude accounts for that pro-
vision of the 1946 Administrative Procedure Act which
exempted “interpretative rules” (since they would not be
authoritative) from the notice-and-comment requirements
applicable to rulemaking, see 5 U. S. C. § 553(b)(A).
That era came to an end with our watershed decision in
Chevron U. S. A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837, 844 (1984), which established the principle
that “a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by
the administrator of an agency.” * While Chevron in fact
*I do not comprehend Justice Breyer’s contention, post, at 596–597
(dissenting opinion), that Skidmore deference—that special respect one
gives to the interpretive views of the expert agency responsible for admin-
istering the statute—is not an anachronism because it may apply in “cir-
cumstances in which Chevron-type deference is inapplicable.” Chevron-

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590 CHRISTENSEN v. HARRIS COUNTY
Opinion of Scalia, J.
involved an interpretive regulation, the rationale of the case
was not limited to that context: “ ‘The power of an adminis-
trative agency to administer a congressionally created . . .
program necessarily requires the formulation of policy and
the making of rules to fill any gap left, implicitly or explicitly,
by Congress.’ ” Id., at 843, quoting Morton v. Ruiz, 415
U. S. 199, 231 (1974). Quite appropriately, therefore, we
have accorded Chevron deference not only to agency regula-
tions, but to authoritative agency positions set forth in a va-
riety of other formats. See, e. g., INS v. Aguirre-Aguirre,
526 U. S. 415, 425 (1999) (adjudication); NationsBank of
N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251,
256–257 (1995) (letter of Comptroller of the Currency); Pen-
sion Benefit Guaranty Corporation v. LTV Corp., 496 U. S.
633, 647–648 (1990) (decision by Pension Benefit Guaranty
Corp. to restore pension benefit plan); Young v. Community
Nutrition Institute, 476 U. S. 974, 978–979 (1986) (Food and
type deference can be inapplicable for only three reasons: (1) the statute is
unambiguous, so there is no room for administrative interpretation; (2) no
interpretation has been made by personnel of the agency responsible for
administering the statute; or (3) the interpretation made by such person-
nel was not authoritative, in the sense that it does not represent the official
position of the expert agency. All of these reasons preclude Skidmore
deference as well. The specific example of the inapplicability of Chevron
that Justice Breyer posits, viz., “where one has doubt that Congress
actually intended to delegate interpretive authority to the agency,” post,
at 597, appears to assume that, after finding a statute to be ambiguous,
we must ask in addition, before we can invoke Chevron deference, whether
Congress intended the ambiguity to be resolved by the administering
agency. That is not so. Chevron establishes a presumption that ambigu-
ities are to be resolved (within the bounds of reasonable interpretation)
by the administering agency. The implausibility of Congress’s leaving
a highly significant issue unaddressed (and thus “delegating” its reso-
lution to the administering agency) is assuredly one of the factors to be
considered in determining whether there is ambiguity, see MCI Tele-
communications Corp. v. American Telephone & Telegraph Co., 512 U. S.
218, 231 (1994), but once ambiguity is established the consequences of
Chevron attach.

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591 Cite as: 529 U. S. 576 (2000)
Opinion of Scalia, J.
Drug Administration’s “longstanding interpretation of the
statute,” reflected in no-action notice published in the Fed-
eral Register).
In my view, therefore, the position that the county’s action
in this case was unlawful unless permitted by the terms of
an agreement with the sheriff ’s department employees war-
rants Chevron deference if it represents the authoritative
view of the Department of Labor. The fact that it appears
in a single opinion letter signed by the Acting Administrator
of the Wage and Hour Division might not alone persuade me
that it occupies that status. But the Solicitor General of the
United States, appearing as an amicus in this action, has
filed a brief, cosigned by the Solicitor of Labor, which repre-
sents the position set forth in the opinion letter to be the
position of the Secretary of Labor. That alone, even without
existence of the opinion letter, would in my view entitle the
position to Chevron deference. What we said in a case in-
volving an agency’s interpretation of its own regulations ap-
plies equally, in my view, to an agency’s interpretation of its
governing statute:
“Petitioners complain that the Secretary’s interpreta-
tion comes to us in the form of a legal brief; but that
does not, in the circumstances of this case, make it un-
worthy of deference. The Secretary’s position is in no
sense a ‘post hoc rationalizatio[n]’ advanced by an
agency seeking to defend past agency action against
attack, Bowen v. Georgetown Univ. Hospital, 488 U. S.
204, 212 (1988). There is simply no reason to suspect
that the interpretation does not reflect the agency’s fair
and considered judgment on the matter in question.”
Auer v. Robbins, 519 U. S. 452, 462 (1997).
I nonetheless join the judgment of the Court because, for
the reasons set forth in Part II of its opinion, the Secretary’s
position does not seem to me a reasonable interpretation of
the statute.

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592 CHRISTENSEN v. HARRIS COUNTY
Stevens, J., dissenting
Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, dissenting.
Because the disagreement between the parties concerns
the scope of an exception to a general rule, it is appropriate
to begin with a correct identification of the relevant general
rule. That rule gives all employees protected by the Fair
Labor Standards Act of 1938 a statutory right to compensa-
tion for overtime work payable in cash, whether they work
in the private sector of the economy or the public sector. 29
U. S. C. §§ 206, 207 (1994 ed. and Supp. III). In 1985, Con-
gress enacted an exception to that general rule that permits
States and their political subdivisions to use compensatory
time instead of cash as compensation for overtime. The ex-
ception, however, is not applicable unless the public employer
first arrives at an agreement with its employees to substi-
tute that type of compensation for cash. § 207(o); 29 CFR
§ 553.23 (1999). As I read the statute, the employer has no
right to impose compensatory overtime payment upon its
employees except in accordance with the terms of the agree-
ment authorizing its use.
The Court stumbles because it treats § 207’s limited and
conditional exception as though it were the relevant general
rule. The Court begins its opinion by correctly asserting
that public employers may “compensate their employees for
overtime by granting them compensatory time or ‘comp
time,’ which entitles them to take time off work with full
pay.” Ante, at 578. It is not until it reaches the bottom of
the second page, however, that the Court acknowledges that
what appeared to be the relevant general rule is really an
exception from the employees’ basic right to be paid in cash.
Ante, at 579.
In my judgment, the fact that no employer may lawfully
make any use of “comp time” without a prior agreement with
the affected employees is of critical importance in answering
the question whether a particular method of using that form

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593 Cite as: 529 U. S. 576 (2000)
Stevens, J., dissenting
of noncash compensation may be imposed on those employees
without their consent. Because their consent is a condition
without which the employer cannot qualify for the exception
from the general rule, it seems clear to me that their agree-
ment must encompass the way in which the compensatory
time may be used.
In an effort to avoid addressing this basic point, the Court
mistakenly characterizes petitioners’ central argument as
turning upon the canon expressio unius est exclusio alter-
ius.1 According to the Court, petitioners and the United
States as amicus curiae contend that because employees are
granted the power under the Act to use their compensatory
time subject solely to the employers’ ability to make employ-
ees wait a “reasonable time” before using it, “all other meth-
ods of spending compensatory time are precluded.” Ante,
at 583. The Court concludes that expressio unius does not
help petitioners because the “thing to be done” as prescribed
by the statute (and because of which all other “things” are
excluded) is simply a guarantee that employees will be al-
lowed to make some use of compensatory time upon request,
rather than an open-ended promise that employees will be
able to choose (subject only to the “reasonable time” limita-
tion) how to spend it. Ibid.
This description of the debate misses the primary thrust
of petitioners’ position. They do not, as the Court implies,
contend that employers generally must afford employees es-
sentially unlimited use of accrued comp time under the stat-
ute; the point is rather that rules regarding both the avail-
1 It must be noted that neither petitioners’ brief nor the brief for the
United States as amicus curiae actually relies upon this canon. Indeed,
the sole mention of it in either brief is in petitioners’ statement of the
case, in which petitioners refer in a single sentence to an argument made
by the Court of Appeals for the Eighth Circuit in Heaton v. Moore, 43
F. 3d 1176 (1994) (rejecting compelled-use policy absent agreement to that
effect), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995).

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594 CHRISTENSEN v. HARRIS COUNTY
Stevens, J., dissenting
ability and the use of comp time must be contained within
an agreement. The “thing to be done” under the Act is for
the parties to come to terms. It is because they have not
done so with respect to the use of comp time here that the
county may not unilaterally force its expenditure.
The Court is thus likewise mistaken in its insistence that
under petitioners’ reading, the comp time exception “would
become a nullity” because employees could “forc[e] employ-
ers to pay cash compensation instead of providing compensa-
tory time” for overtime work. Ante, at 585. Quite the con-
trary, employers can only be “forced” either to abide by the
arrangements to which they have agreed, or to comply with
the basic statutory requirement that overtime compensation
is payable in cash.
Moreover, as the Court points out, ante, at 580, 584, even
absent an agreement on the way in which comp time may be
used, employers may at any time require employees to “cash
out” of accumulated comp time, thereby readily avoiding
any forced payment of comp time employees may accrue.
§ 207(o)(3)(B); 29 CFR § 553.26(a) (1999). Neither can it be
said that Congress somehow assumed that the right to force
employees to use accumulated comp time was to be an im-
plied term in all comp time agreements. Congress specifi-
cally contemplated that employees might well reach the stat-
utory maximum of accrued comp time, by requiring, in
§ 207(o)(3)(A), that once the statutory maximum is reached,
employers must compensate employees in the preferred
form—cash—for every hour over the limit.
Finally, it is not without significance in the present case
that the Government department responsible for the stat-
ute’s enforcement shares my understanding of its meaning.
Indeed, the Department of Labor made its position clear to
the county itself in response to a direct question posed by
the county before it decided—agency advice notwithstand-
ing—to implement its forced-use policy nonetheless. The
Department of Labor explained:

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595 Cite as: 529 U. S. 576 (2000)
Stevens, J., dissenting
“[A] public employer may schedule its nonexempt em-
ployees to use their accrued FLSA compensatory time
as directed if the prior agreement specifically provides
such a provision, and the employees have knowingly and
voluntarily agreed to such provision . . . .
“Absent such an agreement, it is our position that nei-
ther the statute nor the regulations permit an employer
to require an employee to use accrued compensatory
time.” Opinion Letter from Dept. of Labor, Wage and
Hour Div. (Sept. 14, 1992), 1992 WL 845100.
The Department, it should be emphasized, does not suggest
that forced-use policies are forbidden by the statute or regu-
lations. Rather, its judgment is simply that, in accordance
with the basic rule governing compensatory time set down
by the statutory and regulatory scheme, such policies may
be pursued solely according to the parties’ agreement. Be-
cause there is no reason to believe that the Department’s
opinion was anything but thoroughly considered and consist-
ently observed, it unquestionably merits our respect. See
Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).2
In the end, I do not understand why it should be any more
difficult for the parties to come to an agreement on this term
of employment than on the antecedent question whether
compensatory time may be used at all. State employers
enjoy substantial bargaining power in negotiations with
their employees; by regulation, agreements governing the
availability and use of compensatory time can be essentially
as informal as the parties wish. See 29 CFR § 553.23(c)
(1999). And, as we have said, employers retain the ability
to “cash out” of accrued leave at any time. That simple step
is, after all, the method that the Department of Labor years
ago suggested the county should pursue here, and that would
2 I should add that I fully agree with Justice Breyer’s comments on
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837 (1984). See post, at 596–597 (dissenting opinion).

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596 CHRISTENSEN v. HARRIS COUNTY
Breyer, J., dissenting
achieve precisely the outcome the county has all along
claimed it wants.
I respectfully dissent.
Justice Breyer, with whom Justice Ginsburg joins,
dissenting.
Justice Scalia may well be right that the position of the
Department of Labor, set forth in both brief and letter, is an
“authoritative” agency view that warrants deference under
Chevron U. S. A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837 (1984). Ante, at 590 (opinion concurring
in part and concurring in judgment). But I do not object to
the majority’s citing Skidmore v. Swift & Co., 323 U. S. 134
(1944), instead. And I do disagree with Justice Scalia’s
statement that what he calls “Skidmore deference” is “an
anachronism.” Ante, at 589.
Skidmore made clear that courts may pay particular atten-
tion to the views of an expert agency where they represent
“specialized experience,” 323 U. S., at 139, even if they do
not constitute an exercise of delegated lawmaking authority.
The Court held that the “rulings, interpretations and opin-
ions of ” an agency, “while not controlling upon the courts by
reason of their authority, do constitute a body of experience
and informed judgment to which courts and litigants may
properly resort for guidance.” Id., at 140; see also Martin
v. Occupational Safety and Health Review Comm’n, 499
U. S. 144, 157 (1991). As Justice Jackson wrote for the
Court, those views may possess the “power to persuade,”
even where they lack the “power to control.” Skidmore,
supra, at 140.
Chevron made no relevant change. It simply focused
upon an additional, separate legal reason for deferring to cer-
tain agency determinations, namely, that Congress had dele-
gated to the agency the legal authority to make those deter-
minations. See Chevron, supra, at 843–844. And, to the
extent there may be circumstances in which Chevron-type

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597 Cite as: 529 U. S. 576 (2000)
Breyer, J., dissenting
deference is inapplicable—e. g., where one has doubt that
Congress actually intended to delegate interpretive author-
ity to the agency (an “ambiguity” that Chevron does not
presumptively leave to agency resolution)—I believe that
Skidmore nonetheless retains legal vitality. If statutes are
to serve the human purposes that called them into being,
courts will have to continue to pay particular attention in
appropriate cases to the experience-based views of expert
agencies.
I agree with Justice Stevens that, when “thoroughly
considered and consistently observed,” an agency’s views,
particularly in a rather technical case such as this one,
“meri[t] our respect.” Ante, at 595 (dissenting opinion).
And, of course, I also agree with Justice Stevens that,
for the reasons he sets forth, ante, at 592–594, the Labor
Department’s position in this matter is eminently reasonable,
hence persuasive, whether one views that decision through
Chevron’s lens, through Skidmore’s, or through both.