28 Feb Future of Obama Administration’s Overtime Rules Still Unclear
Last December, we had discussed the uncertain future of the Overtime Rules enacted during the Obama Administration, which would have more than doubled the minimum salary threshold for the major white collar exemptions to the Federal Fair Labor Standards Act, given the preliminary injunction granted by the United States Court for the Eastern District of Texas on November 22, suspending the implementation of the rules and blocking the Department of Labor from enforcing them. A month into the Trump Administration, the future of the Overtime Rules remains unclear.
On February 17, 2017, attorneys for the Department of Labor filed an uncontested motion asking the U.S. Court of Appeals for the Fifth Circuit for a 60-day extension of time to file their reply brief in the appeal of the preliminary injunction. This is the second extension requested by the Department of Labor. The reply brief was originally due at the end of January. The first extension was requested and granted while the ill-fated nomination of Andrew Puzder for Secretary of Labor was still pending. The most recent extension request was filed the day after President Trump nominated Alexander Acosta for Secretary of Labor. In both motions, the Department of Labor’s stated rationale for the extension was to “allow incoming leadership personnel adequate time to consider the issues.”
Meanwhile, the Society for Human Resource Management (SHRM) and other management-side organizations have told congressional leaders that they should either rescind or revise the Overtime Rules legislatively. This is because it would not be easy for the Department of Labor to simply regulate the rules out of existence, as it would likely be subject to the notice-and-comment process that is required for administrative rule-making. It would likely be easier for Congress to enact legislation rescinding the rules.
At any rate, at this point in time, the Trump Administration is still mum on the future of the Overtime Rule. The fact that President Trump’s first pick for Labor Secretary withdrew his name from consideration late last week and that the new nominee must follow the confirmation process, will likely delay any action by the Administration on the rules. Based on the track record of both of Trump’s nominees, however, it would be hard to imagine the Department of Labor defending the rules with any degree of steadfastness.
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