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Oral Argument on Overtime Rule Appeal Scheduled for October 2nd

The Fifth Circuit Court of Appeals tentatively has set oral argument for October 2nd on the Obama-era overtime pay rule that has been blocked from government enforcement by a federal district court in Texas since last November.  The DOL under the Trump administration already has backed away from the government’s previous position, asserting in its appellate brief that it will not continue to advocate for the salary level set forth in the final rule but instead will undertake further rulemaking to determine what the proper salary level should be.  To that end, just last week the DOL issued a public request for information in anticipation of new rulemaking setting forth a lower salary level.  The DOL continues to argue on appeal, however, that it has the statutory authority to establish a salary level test, contrary to the conclusion of the district court.   It will be interesting to see how the DOL asks the Court to confirm its authority to set a salary level and reverse the district court on that point, but at the same time, not revive the Obama Final Rule that the DOL is now on a path to replace.

Coincidentally, oral argument before the Supreme Court is set for the same day in NLRB v. Murphy Oil USA and consolidated cases, to address the validity of class and collective action waivers in employment arbitration agreements.  The Court’s holding no doubt will have a significant impact on wage and hour class and collective actions going forward and is another matter in which the new administration has parted ways from its predecessor, the Department of Justice recently asserting in its brief to the Court that such waiver provisions are valid and enforceable.  So, October 2nd is shaping up to be a big day for employers.

Jackson Lewis P.C. © 2018


About this Author

Jeffrey Brecher, Jackson Lewis, Management Arbitration Lawyer, Labor Litigation Attorney

Jeffrey W. Brecher is a Principal in the Long Island, New York, office of Jackson Lewis, and is Practice Group Leader of the firm's Wage and Hour practice. He has litigated hundreds of cases, defending management at arbitration, before state and federal administrative agencies and at trial.

Mr. Brecher regularly advises clients on compliance with various state and federal laws affecting the workplace, including discrimination and related claims arising under Title VII, Family and Medical Leave Act, Americans with...

Eric R. Magnus, Jackson Lewis, Wage and Hour Class Defense Lawyer, Employment Matters Attorney

Eric R. Magnus is a Shareholder in the Atlanta, Georgia, office of Jackson Lewis P.C. His practice is focused primarily on defending federal and state wage and hour class and collective actions in jurisdictions across the United States.

Mr. Magnus’ collective and class action practice focus primarily on “donning and doffing,” “off-the-clock” and misclassification wage and hour cases. Mr. Magnus has obtained summary judgment at the district and circuit court levels in Fair Labor Standards Act and state law cases across the country. Mr. Magnus has also obtained favorable settlements in nationwide off-the-clock, donning and doffing and misclassification cases in several jurisdictions. He is an active member of the firm’s national class action and wage hour practice groups. Mr. Magnus also regularly advises clients prospectively on proper classifications of employees and on effective methods to avoid off-the-clock claims.