DOL gets another extension in defense of overtime rule

The Labor Department has obtained another extension of time within which to file its reply brief in the Fifth Circuit addressing the Obama Administration’s controversial overtime rule. This is the latest in a series of delays obtained by the DOL since the appeals court issued an order on December 8, 2016, granting the Obama-era department’s opposed motion for an expedited appeal with some modifications. The latest extension, requested in an unopposed motion filed by the DOL on April 14, moves the current May 1 deadline for the reply brief to June 30.
The initial briefing schedule set the due date for the DOL’s reply brief at January 31. In its April 14 motion for an extension, the DOL noted that the due date was previously extended to “allow incoming leadership personnel adequate time to consider the issues.” Because the nominee for Secretary of Labor still has not yet been confirmed, the government requested an additional 60-day extension.
Last November, in State of Nevada v. U.S. Department of Labor, a Texas federal court granted an emergency motion for a preliminary injunction in a consolidated case challenging the rule brought by 21 states (and a business coalition), ruling that “Congress intended the EAP exemption to depend on an employee’s duties rather than an employee’s salary.”
The final rule would have gone into effect December 1, 2016, nearly doubling the salary threshold for the executive, administrative, and professional (EAP) exemption (the so-called “white collar” exemption) at which FLSA overtime requirements would cease to apply. The rule would have set the floor at $913 per week, or $47,476 annually, for full-time workers-the 40th percentile of earnings of full time salaried workers in the lowest-wage Census Region, currently the south.
To appeal or not to appeal…Although the DOL filed a notice of appeal on December 1 challenging the preliminary injunction, the department may now face an interesting quandary: Push forward defending the rule, back off and potentially be stuck with a ruling that the department lacks authority to set any salary threshold, or make a new rule more palatable to those who oppose the Obama-era rule.
AFL-CIO may shoulder the mantle of defense. Notably, though, the defense of the overtime rule may not rest entirely in the hands of the Labor Department. Looking at the handwriting on the wall after Donald Trump’s election, the Texas AFL-CIO on December 9, 2016, filed a motion to intervene in the case, noting that although the interests of the DOL in defending the rule parallel the interests of the federation of unions in many respects, it had additional concerns that might not be adequately represented by the Labor Department. “With the recent presidential election, and particularly as more information becomes available regarding the incoming Administration’s plans, policy and appointments, the Texas AFL-CIO has grave concerns as to whether its interests in the Final Rule will be represented by the DOL,” the union federation wrote.
If the motion to intervene is granted, the litigation of the case may take a different course than that desired by Trump’s Labor Department.
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