Labor Department Seeks to Fast Track Overtime Appeal
Author: Steven F. Pockrass (Indianapolis)
Published Date: December 2, 2016
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).
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.
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...