May 25, 2017

U.S. Department of Labor granted more time to defend overtime rule

With Alexander Acosta recently confirmed as the new Secretary of Labor, the U.S. Department of Labor requested a further extension of time to file its reply brief in support of the overtime rule.

The Department of Labor’s overtime rule raising the Fair Labor Standards Act salary threshold for white collar exemptions for executive, administrative and professional workers from $23,660 to $47,476 was scheduled to take effect on Dec. 1, 2016. Just days before, on Nov. 22, 2016, a federal district court in Texas issued an injunction order. This injunction prevented the Department of Labor from implementing and enforcing its new overtime rule and this action left employers in limbo.

Under the Obama administration, the Department of Labor appealed the injunction and filed a brief supporting the overtime rule. The states and business groups that had sought the injunction responded by filing a brief in support of the injunction and in opposition to the overtime rule. To complete the briefing in the Fifth Circuit Court of Appeals, the Department of Labor is allowed to file a reply brief. With the change in the administration, the Department of Labor under President Trump has requested and received several extensions of time to file this brief, and the brief is now due on June 30, 2017.

Even with a Secretary in place, it is unclear what position the Department of Labor will take. It could withdraw the appeal and not defend the action at the district court level, essentially abandoning the overtime rule. Comments made during Secretary Acosta’s confirmation hearing that the Department of Labor may not even have had the authority to raise the salary threshold and, even if they did, that $47,476 was too high suggest the Department of Labor will not defend the overtime rule.

Chuhak & Tecson’s employment attorneys will continue to monitor the issue. 

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Jeralyn H. Baran, Principal

This alert originally appeared in the May 2017 Employment Focus newsletter.