It appears the Trump administration is looking to get a Department of Labor (DOL) Secretary in place before deciding what to do with the DOL’s new overtime rule. 

About a month ago, on Jan. 25, 2017, the DOL asked for a 30-day extension of time to file a brief in the court proceeding that could determine the fate of the injunction that is delaying implementation of the rule.

When the DOL asked for the extension, it said it was necessary to “allow incoming leadership personnel adequate time to consider the issues.” At that time, Andrew Puzder was in line to become the next DOL Secretary (pending confirmation).

Puzder — a known critic of the overtime rule — has since withdrawn his candidacy for the post.

Another extension request

Now, in the wake of the Trump administration’s nomination of Alexander Acosta to become the next Secretary of Labor, the DOL has requested a 60-day extension of time to file it’s brief in the injunction hearing.

If the unopposed request is granted (and there’s no reason to think it won’t be), it could push the case well into the spring — and employers would be left in limbo even longer.

Worse yet, there are no clear indications of what Acosta’s stance on the overtime rule is. Still, those watching the situation closely from Capitol Hill believe the Trump administration will allow the rule to die at the hands of the injunction. But there’s a chance an Acosta-led DOL will be more open to discussions about altering the rule down the road.

When will employers know whether the rule is officially dead? There is no clear timeline, but it’s a good bet they won’t know anything more until after a new Secretary of Labor has been confirmed.

One possible way employers could hear something sooner: If Amos Mazzant, the judge of the district court in Texas who issued the injunction, issues a decision on the motion for summary judgment against the DOL’s rule.

Mazzant has already denied a motion from the then Obama-controlled DOL to stay proceedings until a ruling was issued on the appeal of the injunction.

Due to the delay of the appeal proceedings, Mazzant could feel compelled to issue a ruling prior to this spring, and a ruling form him could render the appeal proceedings moot. After all, based on his comments when issuing the injunction, it appears as though Mazzant may feel the DOL didn’t have the authority to change the FLSA in the manner that it did. So he could grant summary judgment against the rule, effectively killing it.

Stay tuned.

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