The appeal regarding the validity of the federal overtime rule will not be fully briefed until May 1, 2017, according to an order issued by the Fifth Circuit on February 22, 2017, granting an unopposed request by the Department of Justice for an extension.
Articles Discussing Overtime Exemptions Under The FLSA.
Fifth Circuit Grants Government Request for Additional Time to State Position on Overtime Rule
Before the election the Department of Labor asked the Fifth Circuit Court of Appeals to expedite its appeal regarding the validity of the DOL’s Final Rule, which increased the salary level for the white collar exemptions. Earlier this week, however, following the inauguration of President Trump, the Department of Labor made the opposite request, asking the Court to slow down the process. The DOL asked the Court for additional time to submit its reply brief, currently due January 31, 2017, “to allow incoming leadership personnel adequate time to consider the issues.” The Fifth Circuit Court of Appeals granted that request on January 26, 2017, extending the due date for the reply brief to March 2, 2017.
Trump leaves DOL OT rules on life support – For Now
President Trump has had a busy week since his inauguration: ordering construction of a wall, starting to unwind the ACA, arguing with the media about how many people attended his inauguration – the list goes on. One thing that he has not yet gotten to is the U.S. DOL’s stalled overtime exemption rules. Right now the rules remain in limbo, temporarily suspended by order of a U.S. District Court in Texas. That order is now on appeal to the 5th Circuit Court of Appeals. Earlier this week, the Department of Justice, representing the DOL in the case, asked the 5th Circuit to extend the due date for the government’s brief in the appeal by 30 days “to allow incoming leadership personnel adequate time to consider the issues.” The coalitions of states and business groups opposing the new rules, not surprisingly, did not oppose that request.
DOL Requests Additional Time to “Consider Issues” Before Filing Reply In Support of Salary Basis Rule
Earlier today, the Department of Labor filed an unopposed motion to extend the deadline for its next submission in support of its appeal of the salary basis rule injunction. The motion for extension requested until March 2, 2017 to submit the Department’s reply brief to the Fifth Circuit, and expressly stated that the extra time is “necessary to allow incoming leadership personnel adequate time to consider the issues.”
State Plaintiffs Urge Fifth Circuit to Affirm Nationwide Injunction Blocking DOL Overtime Rule
In the latest round in the litigation between 21 States, led by the State of Nevada, and the Department of Labor regarding the Final Rule, the State Plaintiffs filed their appeal brief today with the Fifth Circuit, urging the Court to affirm the district court’s order, which issued a nationwide injunction blocking the rule.
OT Exemption Rules Lawsuit Will Proceed Despite Appeal
Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas has decided that he will not halt the lawsuit challenging the U.S. DOL’s new overtime exemption rules pending a ruling from the 5th Circuit Court of Appeals on his earlier order temporarily blocking the rules from taking effect.
Sen. Sanders, Other Members of Congress, File Amicus Brief in Support of DOL Salary Basis Regulation
Sen. Bernie Sanders, along with twenty-five other members of Congress, have filed an amicus brief in the Fifth Circuit Court of Appeals urging the Court to reverse the injunction issued by a Texas federal judge enjoining enforcement of the Department of Labor’s recent increase to the salary basis threshold for the white collar exemptions under the Fair Labor Standards Act (“FLSA”).
Federal Overtime Rule Injunction Calls for State-Level Attention
Many businesses let out a sigh of relief after a federal judge issued a preliminary injunction1 halting the U.S. Department of Labor’s (DOL) final rule increasing the minimum pay requirements for exempt executive, administrative, and professional employees. The preliminary injunction was issued about a week before the rule was scheduled to take effect on December 1, 2016. The preliminary injunction effectively maintains the status quo under the federal Fair Labor Standards Act (FLSA), which requires that these employees be paid at least $455 per week to maintain their exemption from the FLSA’s minimum wage and overtime requirements.
AFL-CIO Seeks To Intervene In Overtime Rules Court Fight
The pending court fight between the U.S. DOL and a coalition of states and business groups over the new overtime exemption rules will not be resolved before President Obama leaves office in January, even though the 5th Circuit Court of Appeals has now granted the DOL’s motion to set an expedited briefing schedule on its appeal from a preliminary district court order blocking the rules from taking effect. While we don’t know for sure what position the Trump administration will take on the new rules, the nomination of fast-food executive Andy Puzder as Secretary of Labor seems to be a pretty clear sign. Puzder has been a vocal critic of the new rule.
Texas AFL-CIO Files Motion to Intervene in DOL Final Rule Lawsuit, Citing Trump Administration’s Anticipated Change of Course
The Texas AFL-CIO recently filed a motion to intervene as a defendant in the action filed against the Department of Labor (DOL) regarding its highly publicized regulation expanding overtime coverage. Fearing the DOL under President-Elect Donald Trump might abandon its appeal to the Fifth Circuit of a nationwide preliminary injunction issued by a Texas District Court judge, the Texas AFL-CIO seeks to defend the Final Rule even if the DOL backs out.
Fifth Circuit Grants DOL’S Request For Expedited Briefing of Preliminary Injunction Ruling; Case to Be Fully Briefed by January 31, 2017
In a December 8, 2016 Order, the Fifth Circuit Court of Appeals granted the DOL’s request for expedited briefing of its appeal of the preliminary injunction issued by a district court judge that had enjoined the DOL from implementing its regulation raising the salary level for the white collar exemptions. The Court even set a quicker briefing schedule than DOL had requested in its Motion.
DOL Requests Expedited Ruling on Appeal of Preliminary Injunction, But Appeal Will Not Be Decided Before Trump Administration Under Proposed Schedule
On December 2, one day after filing its appeal of the preliminary injunction blocking its new salary basis regulations, the DOL filed a request for expedited briefing and oral argument in the appeal. The DOL has requested that the Fifth Circuit Court of Appeals set an expedited schedule whereby briefing would be complete on February 7, 2017 and oral argument would occur on the first available date thereafter. According to the DOL, the injunction was issued in error because the Fair Labor Standards Act gives the DOL “broad latitude” to issue regulations defining and delimiting the white collar exemptions, including the salary basis test.
DOL Appeals Preliminary Injunction Ruling to Fifth Circuit
On December 1, 2016, the Department of Labor appealed the district court’s preliminary injunction ruling. It is expected that the DOL will request the Fifth Circuit to rule on the appeal quickly, but the Fifth Circuit may not grant this request, and the appeal may not be resolved prior to January 20, 2017. If the appeal is not resolved prior to the Trump Administration, the appeal could be withdrawn by the new administration or legislation passed by the new Congress nullifying the DOL regulation.
Exemption Rules Appeal Won’t Be Resolved Before Obama Leaves Office
It looks like the U.S. Department of Labor’s appeal of the order blocking the new overtime exemption rules won’t be decided before President Obama leaves office. Under the Court of Appeals’ regular rules, the DOL’s opening brief would have been due in mid-January, followed by the response brief 30 days later, and the DOL’s reply 14 days after that, likely taking the briefing process into March. Last Friday, December 2, the DOL filed a motion asking the Court of Appeals to set an expedited briefing schedule, under which the DOL would file its initial brief by December 16, and all briefing would be completed by February 7, 2017. The DOL’s motion further asks the Court of Appeals to set a date for oral argument on “the first available date after close of briefing.”
DOL Goes for Round Two in Battle Over Salary Hike
The U.S. Department of Labor isn’t taking “no” for an answer on its attempt to hike the minimum salary required for workers with certain duties to remain exempt from overtime. The agency stated today that it “strongly disagrees” with the Texas federal court’s ruling last week that halted the implementation of the salary increase, covered in our November 23 client alert. A notice of appeal has been filed. We don’t know whether this fight will conclude in the court system or whether the DOL will change its course under the new administration. But it looks like things are about to get interesting and we’ll keep you updated along the way.