Human Resources News & Insights

AFL-CIO wants to defend overtime rule in court if DOL can’t: What now?

Just when employers think time may be running out on the DOL’s legal defense of its overtime rule, someone tries to throw the agency a lifeline. 

The Texas AFL-CIO, a federation of 650 local Texas unions, has 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.

Essentially, the AFL-CIO wants to defend the DOL’s position that the federal agency had the statutory authority to create the rule in the event that the Trump administration pulls the plug on the DOL’s ability to mount a defense itself.

Trump expected to pull DOL out

Here’s where the rule stands now:

After the Texas court issued a preliminary injunction on the rule, essentially delaying its implementation indefinitely, the DOL appealed the injunction.

The DOL then asked for the appeals process to be expedited, presumably to give the Trump administration less of a chance to kill the rule altogether. The court then granted the DOL the expedited appeal timeline.

Still, even in an expedited appeals process, the legal battle will drag on until at least February. By that time, Donald Trump will be in office and can order the DOL to abandon its defense of the law.

Most legal experts are predicting that’s exactly what the Trump administration will do. That would be a death blow for the rule — unless the AFL-CIO is allowed to take up the DOL’s mantle and defend the rule.

What are the chances of that happening? Reading the tea leaves, the chances seem slim the AFL-CIO would be allowed to act as a defendant in the lawsuit. After all, 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.

In its motion to intervene, the AFL-CIO expressed concerns that the DOL under the Trump administration would abandon the appeal of the injunction. Therefore, the AFL-CIO said it had concerns as to whether its interests in the rule would be properly represented.

Bottom line: For those keeping score at home, the odds still appear to be skewed toward the Trump administration pulling the plug on the DOL’s defense of the rule — and, thus, the rule dying with the injunction. But the AFL-CIO motion to intervene does move the needle a little bit in the opposite direction — slightly increasing the odds the rule survives.

For now, employers should be exploring every option to safeguard themselves from the pitfalls that have arrived with the injunction and the limbo period it has created. Earlier this month, we reported on five things employers need to know to minimize their FLSA vulnerability.

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