UPDATE: Appeal Of Department Of Labor's Overtime Rule Delayed.... Again

Implementation of the Department of Labor’s (“DOL”) proposed overtime rule remains in limbo as the Fifth Circuit Court of Appeal recently approved the DOL’s third request for an extension of time to file its reply brief in order to “allow incoming leadership personnel adequate time to consider the issues.”  The most recent extension came within a week of the U.S. Senate’s confirmation of the nomination of Rene Alexander (“Alex”) Acosta as the Secretary of Labor which occurred on April 27, 2017.   Accordingly, the DOL’s reply brief is now due June 30, 2017 giving the DOL another two months to evaluate its options, which may include anything from abandoning the appeal altogether to revising the rule to reflect more modest adjustments.

Secretary Acosta does not appear to support the Obama Administration’s efforts to implement and enforce the new overtime rule which would require employers to more than double the current minimum salary requirement of $23,660 to $47,476 in order to maintain the overtime exemption for “white collar” executive, administrative, and professional employees.  Acosta has voiced his opinion that such a jump would create “a stress on the system.” Acosta is, however, sensitive to the fact that the threshold has not been updated in more than a decade. He has expressed an interest in consulting further with officials at the Department of Justice to determine whether the DOL has the authority to increase the salary threshold at all.  If so, Acosta is on record supporting more modest increases to mirror inflation.  During his March 22, 2017 confirmation hearing before the Senate, Acosta stated his belief that the salary threshold should be “somewhere around $33,000” after taking into account inflation to the cost of living since the last time the regulation was adjusted in 2004. 

So, in a nutshell, it remains to be seen whether the proposed increase in the salary threshold will be pursued and implemented.  In the meantime, however, employers are still encouraged to evaluate “white collar” employees’ primary job duties in order to assess whether they truly meet the second prong of the two-prong exemption analysis – the duties test.   

We will continue to provide updates as more developments occur regarding the status of the DOL’s appeal and/or the fate of the new overtime rule.  

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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.