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Fifth Circuit Agrees to Fast Track DOL Overtime Appeal

On December 8, 2016, the U.S. Court of Appeals for the Fifth Circuit announced that it will fast track the appeal of a nationwide preliminary injunction that blocks the U.S. Department of Labor (DOL) from implementing its revisions to overtime rules under the Fair Labor Standards Act (FLSA).

In a single page order signed by Fifth Circuit Judge Jennifer Walker Elrod, the appellate court granted the DOL’s motion seeking an expedited appeal. Notably, the ruling establishes a briefing schedule that is shorter than the one that the DOL had requested. 

Under the schedule proposed by the DOL, all briefing would have been completed by February 7, 2017, whereas the schedule set by the Fifth Circuit requires briefing to be completed by January 31, 2017, which is a week earlier than the DOL had requested. However, this still means that the DOL will not file its final brief and that an oral argument will not occur until after the presidential administration has changed.

In its appeal, the DOL is challenging a preliminary injunction that was issued on November 22, 2016, by Judge Amos L. Mazzant III, a federal judge for the Eastern District of Texas. The injunction halted the implementation of regulations that would have more than doubled the minimum salary requirements for the FLSA’s major white collar overtime exemptions. Those regulations were scheduled to go into effect on December 1, 2016. 

In issuing the injunction, Judge Mazzant found that the DOL exceeded its authority by increasing the minimum salary level contained in the regulations from $455 per week to $913 per week, as the use of the new threshold would supplant the duties tests and thereby exclude from exemption many bona fide executive, administrative, and professional employees under Section 13(a)(1) of the FLSA.  

Pursuant to the Fifth Circuit’s order, the briefing schedule is as follows:

  • The appellants’ opening brief and record excerpts are due on or before December 16, 2016.

  • Amicus briefs in support of the appellants are due on or before December 23, 2016.

  • The appellees’ response brief and record excerpts are due on or before January 17, 2017.

  • Amicus briefs in support of the appellees are due on or before January 24, 2017.

  • The appellants’ reply brief is due on or before January 31, 2017.

Oral argument will be scheduled for the first available sitting after the close of briefing. 

The Fifth Circuit’s order was issued on the same day that President-elect Donald J. Trump announced that his nominee for Secretary of Labor, which is the top position at the DOL, is Andrew Puzder, a fast-food CEO who is a member of the International Franchise Association’s Board of Directors. While many businesses have been critical of the drastic increase in the minimum salary level under the DOL’s proposed final regulations, the restaurant and retail industries are among the sectors that would be particularly hard hit. 

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VI, Number 348

About this Author

Steven F. Pockrass, Ogletree Deakins, Employment Solutions Lawyer, Wage Related Issues Attorney

Steven (“Steve”) Pockrass is Co-Chair of the firm’s Wage and Hour Practice Group. In this position, he helps clients and attorneys throughout the firm deliver proactive and responsive solutions to federal and state wage-hour questions and concerns.  Steve coordinates wage-hour resources within the firm and works on a variety of wage-related issues, ranging from evaluating whether certain job positions are properly classified to defending collective and class actions.  In addition to focusing on the complexities and nuances of the federal Fair Labor Standards Act, he...