DOL seeks extension of overtime rule injunction

The Department of Labor (DOL) has filed a motion in the Fifth Circuit to once again seek an extension of time within which to file its reply brief in its appeal of a lower court ruling that enjoined implementation and enforcement of the controversial “white collar” overtime rule. Under the Obama Administration, the DOL sought and obtained an expedited appeal of the Texas district court’s decision. The DOL was initially slated to file its reply brief on January 31, but in an unopposed motion, it sought and was granted an extension to March 3. In an unopposed motion filed on February 16, the department is seeking a longer 60-day extension.

Among other things, the final rule set the salary floor below which overtime must be paid to executive, administrative, and professional (EAP) employees at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, which is currently the south. That resulted in a salary floor increase from $455 a week, or $23,660 annually, to $913 a week, or $47,476 annually. Under the rule, the salary level would be automatically updated every three years at the same 40th percentile.

In November 2016, in State of Nevada v. U.S. Department of Labor, the district 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 DOL quickly appealed to the Fifth Circuit. The states challenging the rule filed their brief as scheduled on January 17. However, with the change in White House administration, the DOL, which does not yet have a new Secretary of Labor confirmed, has now sought two delays in filing its reply brief. The current delay is in order to “allow incoming leadership personnel adequate time to consider the issues,” according to the DOL’s motion, which asks for an extension until May 1 to file the brief. There is widespread speculation that the Trump Administration may decide to abandon the appeal.

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