In his ruling, 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.
The injunction was issued on the Tuesday before Thanksgiving, and less than 10 days prior to the scheduled effective date of the regulations. At that point, some employers already had made changes to comply with the revised regulations, and many had announced their planned changes. Since then, additional employers have moved forward with their planned changes, while others have held off in light of the uncertain future of the revised regulations.
A DOL appeal of the preliminary injunction was widely anticipated, although the amount of time it has taken the DOL to file the notice of appeal is somewhat surprising. Shortly after the injunction was issued, the DOL stated on its website: “The Department strongly disagrees with the decision by the court, which has the effect of delaying a fair day's pay for a long day's work for millions of hardworking Americans. The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule.”
The notice of appeal is a very short document that simply commences the appeal process and does not contain any legal argument. Possible next steps by the DOL could include a motion to stay the preliminary injunction pending the appeal and/or a motion to expedite the appeal process. Absent a motion to expedite, the normal briefing schedule at the Fifth Circuit would not be completed until after Donald Trump’s inauguration on January 20, 2017. As there are no guarantees that the Trump administration would continue to pursue the appeal, one would expect the current DOL to want the appeal to be briefed and argued as quickly as possible.
Steven (“Steve”) Pockrass is Co-Chair of the firm’s Wage and Hour Practice Group. In this position, he helps clients and attorneys throughout the firm deliver proactive and responsive solutions to federal and state wage-hour questions and concerns. Steve coordinates wage-hour resources within the firm and works on a variety of wage-related issues, ranging from evaluating whether certain job positions are properly classified to defending collective and class actions. In addition...