With the Overtime Appeal Over, It’s Now Time to Focus on the Do-Over

With the appeal of the overtime injunction in federal court now over, employers and trade associations now need to focus on the overtime do-over that is underway at the U.S. Department of Labor (DOL). More specifically, comments in response to the DOL’s request for information (RFI) regarding potential changes to the salary and duties tests for the white-collar regulations under the federal Fair Labor Standards Act (FLSA) are due no later than Monday, September 25.

Here is a recap of the major developments in the overtime saga:

• The DOL promulgated proposed regulations in 2016 that would have more than doubled the minimum salary requirement for the major white-collar exemptions under the FLSA from $455 per week to $913 per week. Annualized, that would have been an increase in the salary threshold from $23,660 per year to $47,476 per year.
• Those Obama-era regulatory revisions were scheduled to go into effect on December 1, 2016, but a federal court judge in Texas issued a nationwide temporary injunction in November 2016 that blocked their implementation.
• The preliminary injunction decision had been on appeal to the U.S. Court of Appeals for the Fifth Circuit since December. However, on August 31, 2017, the same federal judge issued a summary judgment ruling invalidating the revised regulations.
• Immediately following the summary judgment decision, the DOL filed a motion to withdraw the appeal of the preliminary injunction as moot, and the Fifth Circuit granted that motion and dismissed the appeal on September 6, 2017.

What Does the Dismissal Mean for Employers?

As a result of these court decisions, the FLSA regulations that were effective prior to December 1, 2016, still remain in effect. However, the DOL also published a detailed RFI in the Federal Register on July 26, 2017, in which it asked several questions seeking input regarding the appropriate salary level (or levels) and the duties tests for the white-collar exemptions. The deadline to submit comments is September 25, 2017.  

As of September 7, 2017, more than 124,000 comments had been submitted in response to the RFI, the large majority of which are identical or nearly identical short statements encouraging the DOL to implement the $47,476 annualized salary level that was struck down by the federal court. These submissions are likely the result of an effort by organized labor to hinder the business community’s efforts against implementation of the revised rule. Thus, it is especially important that trade associations, employer groups, and individual employers also make their voices heard by submitting comments.