The DOL issued the controversial proposed regulations during the Obama administration. If they had become effective, the regulations would have more than doubled the minimum salary requirement for the major white-collar exemptions under the Fair Labor Standards Act (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.
As a final judgment, the summary judgment ruling mooted the appeal of the preliminary injunction. Notably, however, the Trump DOL already had indicated during the appeal process that it would be issuing a Request for Information (RFI) with the intent to issue new proposed regulations.
A little more than a month prior to the summary judgment ruling, the DOL then published a detailed RFI in the Federal Register, 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 comment deadline was September 25, 2017, and more than 140,000 comments were submitted.
Although Secretary of Labor Alexander Acosta has indicated that he would favor a salary threshold that annualizes to somewhere between $30,000 and $35,000 per year, as opposed to the $46,476 number supported by the Obama administration, the DOL’s filing of the appeal in this litigation is not a surprise. Rather, it is consistent with the approach previously taken by the U.S. Department of Justice (DOJ), which represents federal agencies such as the DOL in this type of litigation.
More specifically, when a federal district court finds that an agency has exceeded its authority in issuing a new rule, the DOJ will file an appeal while the federal agency it represents again engages in the rulemaking process to replace the rule that the federal district court found to be deficient. The DOJ then will move for a stay arguing that the appeal may become unnecessary due to the anticipated issuance of the new rule. The DOJ also will likely seek a ruling from the appellate court or the district court that vacates or moots the summary judgment decision so that there will no longer be a ruling limiting the DOL’s authority.
Although the party plaintiffs in the overtime litigation are unlikely to oppose any such maneuvering by the DOJ and DOL, the involvement of the Texas AFL-CIO as a proposed intervenor could create some drama. Stay tuned.
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...