As expected, the DOL has appealed a Texas court’s injunction of the agency’s new overtime rule. Then, it asked for the appeals process to be expedited. So where does that leave employers and the rule itself?
The answer, as it was when the injunction was issued, is: still in limbo.
In addition, the prospects for the rule surviving the lawsuit against it by states and business groups remain not very good.
Even if the U.S. Court of Appeals for the Fifth Circuit grants the DOL’s motion for an expedited appeal, the process won’t be completed until after Donald Trump has taken office. As a result, there’s still a strong chance the Trump administration will decide to pull the DOL’s resources to proceed with its appeal. That would be the death knell for the rule.
The standard appeal timeline for the court would’ve put the DOL’s opening brief right around mid-January, followed by a response brief 30 days later and the DOL’s retort two weeks after that. That would mean the appeals process would drag out until at least March.
Under the expedited timeline the DOL has requested, the agency’s opening brief would come about a month earlier. But the process, at the earliest, would drag on until February 7 — well after Trump takes office on January 20, 2017. So the expedited appeals process gives the Trump administration less time to act, but the rule’s prospects still look pretty bleak.
The DOL’s uphill battle
On top of all that, there’s still a good chance the DOL’s appeal would be shot down. After all, Judge Amos L. Mazzant, III, of the U.S. District Court for the Eastern District of Texas, who issued the injunction, said the DOL had an uphill battle to climb in order to prove it had the statutory authority to issue such a rule.
Mazzant ruled the DOL exceeded its authority by raising the overtime salary limit so significantly (from $23,660 to $47,476). He said the DOL’s rule changes, essentially, made the exemption test a one-factor test based on salary alone. He said the changes basically eliminated the duties test, and he said the DOL must examine the duties of employees to determine who falls within the FLSA’s overtime exemption.
By issuing the injunction, Mazzant signaled that the lawsuit against the DOL had a significant chance of succeeding.
Info: For more on what the injunction means for employers and the potential pitfalls it presents, see our breakdown here.