Information request on OT rule is in the works

On June 7, Labor Secretary Alexander Acosta told a House Appropriations subcommittee that the Labor Department (DOL) expects to submit a request for information comment on the controversial updated overtime rule. As Acosta explained in simplified terms earlier in the hearing on the proposed DOL budget, an information request is required under the Administrative Procedure Act before an existing regulation may be withdrawn, with few exceptions.

Final overtime rule

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.


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 overtime 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” (see “Federal judge blocks DOL overtime rule,” November 23, 2016).


The DOL appealed the court’s ruling to the Fifth Circuit. In April, the DOL obtained another extension of time within which to file its reply brief, 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.

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