Acosta Plans to Rescue Overtime Rule with Information Request

At a U.S. Department of Labor (DOL) budget hearing before the Subcommittee for Labor, Health and Human Services, Education, and Related Agencies of the Appropriations Committee for the U.S. House of Representatives, Secretary of Labor Alexander Acosta provided insight as to the Department of Labor’s plans “to look at the overtime [rule] as a general matter” and the salary level in the 2016 Part 541 rule. During the course of his testimony, Secretary Acosta stated that the Department plans to file a request for information (RFI) “probably in the next two to three weeks” in which it will seek information in connection with the overtime rule and its salary level. Secretary Acosta noted that it is a “problem” when the dollar amount of the salary level is not updated “because life gets a lot more expensive.” He also testified that the manner in which the final salary level of $47,476 per year “was done created a shock to the system.”

During his confirmation hearing in March, Secretary Acosta mentioned that the salary increase to $47,476 was excessive and indicated that he was open to a more reasonable salary level—“somewhere around $33,000.” He also noted that it has not been adjusted in over 10 years.

The Obama Labor Department finalized a Part 541 rule in 2016 that increased the salary level from the current $23,660 per year to $47,476 per year. The rule was scheduled to go into effect on December 1, 2016. However, the United States District Court for the Eastern District of Texas blocked the new increased salary level when it issued a nationwide preliminary injunction preventing the Department from enforcing the salary requirement in the 2016 final rule. The Obama Labor Department appealed the district court preliminary injunction to the Fifth Circuit Court of Appeals and this appeal is still pending. Since the inauguration of President Trump, the Department has been granted three extensions to file its reply brief with the Fifth Circuit.  The latest extension gives the Department until June 30, 2017, to file a reply brief. Also, the district court has refrained from issuing a decision in its case on a pending motion for a permanent injunction.

RFI notices seek comments and information from the public in connection with a topic such as the overtime regulations and the salary level in the Part 541 rule. The DOL can use RFIs to identify specific topics on which it seeks comments and to ask pointed questions in order to elicit details and information. The purpose of this RFI is to provide the DOL with information that it can consider and review in evaluating the overtime regulations and salary level included in the 2016 Part 541 rule. It ultimately should lead the DOL to submit a notice of proposed rulemaking (NPRM) that contains a more reasonable salary level and hopefully removes the automatic salary adjustment provision. The RFI may be a way to defer any further litigation involving the 2016 overtime rule and hopefully bring it to closure. It remains to be seen whether a new rulemaking for a more reasonable salary level may embolden worker advocates to challenge any further administrative rulemaking activities to undo the Part 541 rule issued during the Obama administration.