On December 2, 2016, the U.S. Department of Labor (DOL) filed a motion with the U.S. Court of Appeals for the Fifth Circuit seeking to fast track the DOL’s appeal of a nationwide preliminary injunction that blocks the agency from implementing its revisions to overtime rules under the Fair Labor Standards Act (FLSA).

The motion comes just a day after the DOL filed a notice with the Fifth Circuit announcing its intent to appeal the preliminary injunction, which was issued on November 22 by Judge Amos L. Mazzant III, a federal judge for the Eastern District of Texas. The injunction halted the implementation of regulations that would have more than doubled the minimum salary requirements for the FLSA’s major white collar overtime exemptions

In issuing the injunction, Judge Mazzant found that the DOL exceeded its authority by increasing the minimum salary level contained in the regulations from $455 per week to $913 per week, as the use of the new threshold would supplant the duties tests and thereby exclude from exemption many bona fide executive, administrative, and professional employees under Section 13(a)(1) of the FLSA.

Under normal circumstances, the DOL’s opening brief on appeal would not be due until January 11, 2017. In its motion requesting an expedited schedule, the DOL is seeking to have its opening brief filed on December 16, 2016, and to have all briefing completed by February 7, 2017, followed by an oral argument on the first available date after the close of briefing.

The DOL states in its motion that its opening brief will show that the preliminary injunction rests on an error of law and should be reversed. Despite the drastic increase in the minimum salary level contained in the final regulations, the DOL argues that this updated salary level is “commensurate with salary levels the Department of Labor has set over the past 75 years.” 

Expanding the number of workers eligible for overtime has been a major goal of the Obama administration, so it is not surprising that the DOL has filed a motion to expedite the appeal.  However, even if the expedited schedule proposed by the DOL is approved by the Fifth Circuit, briefing will not be completed and the case will not be argued or decided until after the inauguration of Donald Trump as president on January 20, 2017.



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