Fifth Circuit expedites review of ruling blocking overtime rule

The FLSA overtime rule that has been the focus of many forecasts since President-elect Donald Trump appears to have announced fast-food CEO Andrew Puzder as his pick for Secretary of the Department of Labor will be scrutinized by the Fifth Circuit on an expedited basis as the judges review a Texas court’s decision to enjoin implementation and enforcement of the rule (see PAYROLL MANAGEMENT GUIDE Report Letter, Issue No. 1482, dated December 16, 2016.) The DOL’s controversial final rule, (see story in PAYROLL MANAGEMENT GUIDE Report Letter, Issue No. 1469, dated May 24, 2016), which would have gone into effect December 1, nearly doubles 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.

On November 22, 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.”

Not surprisingly, the Labor Department filed a notice of appeal on December 1. The Fifth Circuit issued an order December 8 granting the Labor Department’s opposed motion for an expedited appeal with some modifications. The DOL’s opening brief and record excerpts are due December 16, with supporting amicus briefs due by December 23. Response briefs and record excerpts must be filed by January 17, 2017, with supporting amicus briefs due by January 24. The DOL’s reply is due January 31.

The appeals court will hear arguments on the first available sitting after all briefing is completed. Notably, based on the schedule, the court will not hear the case prior to the inauguration of President-elect Trump.

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