overtime rule, DOL, FLSA

Two very interesting things happened involving the DOL’s overtime rule while you were out of the office over the holidays. 

First, let’s recap where employers last left off with the rule.

Just prior to everyone heading home for the holiday break, the Texas AFL-CIO, a federation of 650 local Texas unions, asked the U.S. District Court for the Eastern District of Texas Sherman Division for the ability to intervene in the lawsuit challenging the DOL’s new overtime rule.

The federation wants to defend the DOL’s position that the federal agency had the authority to create the rule in the event that the incoming Trump administration, and his pick to head the DOL (get to know him here), pulls the plug on the DOL’s defense of the rule.

The chances of the AFL-CIO being allowed to defend the rule on the DOL’s behalf: The chances seem slim. The lawsuit was made against the DOL, and it concerns a rule the DOL created. As a result, legal experts are finding little ground on which the AFL-CIO’s request to intervene can stand.

More recent developments

Now on to what’s happened more recently:

  1. An amicus brief was filed by more than two-dozen members of Congress, including Senator Bernie Sanders (I-VT), in the Fifth Circuit Court of Appeals. Such briefs can be filed by non-litigants with a strong interest in the matter at hand and can present additional arguments the court can choose to consider. In this case, the brief submitted by the members of Congress urges the court to reverse the injunction that has delayed the rule’s implementation. The argument presented in the brief, as you might expect, attempts to outline why the DOL had the authority to issue such a large increase in the salary threshold for the salary basis test. The real question, however, is how much does this brief strengthen the DOL’s position? Prediction: Only a little, if at all.
  2. Judge denies DOL’s motion to stay proceedings. After judge Amos L. Mazzant III of the district court in Texas issued the injunction and the DOL appealed that ruling, the agency filed a motion to stay proceedings in the Texas court until a ruling was issued on its injunction appeal. Judge Mazzant just denied the DOL’s motion. The DOL argued the district court should halt proceedings because any ruling issued in the appeal would greatly influence any further proceedings. But Mazzant ruled the DOL’s motion to stay was without merit. What does this mean? If he chooses, Mazzant may rule on the business plaintiffs’ motion for summary judgment (to essentially strike down the rule) prior to a ruling being handed down on the DOL’s appeal of the injunction.

Stay tuned. We’ll keep you posted as things develop further.

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