You may recall that I blogged on the stalled DOL overtime rules a month or so ago, with the Trump DOL repeatedly asking for extensions to file a brief in the Fifth Circuit. In that brief, administration lawyers told the Fifth Circuit that the DOL intends to revise the overtime rule and asked the court to affirm the DOL’s right to use salary levels to determine eligibility for overtime pay. DOL lawyers stated that the Department will not initiate a new rulemaking until the court affirms the right to set a salary level. Oral argument in the case is set for October 3.
The DOL’s posture now presents the possibility for a most unusual outcome. Option one: The Fifth Circuit reverses the district court (the Obama DOL’s requested outcome on appeal). Unless the Trump DOL withdraws the regulation before the appellate decision, that could result in a retroactive application of the rule and a total mess for employers. If the DOL decides not to enforce the rule but not withdraw it, private parties could still litigate based on the alleged violations of the regulation. It seems highly unlikely that this is the result the Trump DOL would hope obtains.
Option two: The Fifth Circuit affirms the injunction, rejecting the (Obama) DOL’s appeal. We then wait for the DOL to figure out what comes next. But wait, there is still a separate lawsuit pending in the same district court filed by the U.S. Chamber of Commerce and a variety of business groups asking that the regulations be invalidated on other grounds. That case is sitting quietly in a corner while the Fifth Circuit case proceeds.
And, the AFL-CIO filed a motion to intervene in the case that’s now in the Fifth Circuit, which remains pending in the lower court while we wait for an appellate decision. The union has announced its intent to sue if the salary levels are reduced from those set in the December 2016 rules.
Meanwhile, the DOL has announced that it wants comments about whether the overtime rule should be revised. Feedback is sought on questions related to the duties test, the salary level test, the cost of living across the country, the inclusion of bonuses to satisfy a portion of the salary level, and a host of other topics. https://www.federalregister.gov/documents/2017/07/26/2017-15666/request-for-information-defining-and-delimiting-the-exemptions-for-executive-administrative. Written comments must be submitted by September 25, 2017.
What’s the takeaway here? There are a variety of words and phrases that can be used to explain what’s going on here, but most are not fit for restrained conversation. So, I will leave it at this: stay tuned for further developments. We will keep you posted.