October 17, 2021

Volume XI, Number 290

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October 15, 2021

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Overtime Rule Remains in Limbo as Fifth Circuit Grants the DOL’s Request for Another Extension

As many will recall, the Department of Labor’s (“DOL”) overtime rule, increasing the salary threshold for overtime exemptions at the behest of the Obama administration, was scheduled to take effect on December 1, 2016. Months later, it remains in limbo before the Fifth Circuit Court of Appeal. And it apparently will remain in limbo for at least several more months.

Overtime, gage, After publication of the final overtime rule on May 23, 2016, two lawsuits were filed by a coalition of 21 states and a number of business advocacy groups, claiming that the DOL exceeded its rulemaking authority in finalizing the overtime rule. The lawsuits, which were consolidated, sought a variety of relief, including a preliminary injunction blocking the overtime rule from taking effect.

Days before the final rule went into effect, the United States District Court for the Eastern District of Texas granted Plaintiffs’ motion and issued a nationwide preliminary injunction. Prior to President Trump’s inauguration, the Department of Labor appealed the order to the Fifth Circuit. Thereafter, the DOL was granted two extensions of time to consider whether it wished to proceed with the appeal.

The most recent extension was set to expire on May 1, 2017 . Now, the DOL has requested – and the Fifth Circuit has granted – yet another 60-day extension because Secretary of Labor nominee Alexander Acosta has not yet been confirmed. In granting the extension, the Fifth Circuit continued the DOL’s deadline to file its reply brief to June 30, 2017.

This most recent extension will give additional time to the DOL to evaluate its options, which includes abandoning the appeal and any further efforts to implement and enforce the overtime rule. It is important to keep in mind, however, that even though Secretary of Labor Nominee Acosta does not appear to support the Obama administration’s plan to more than double the salary threshold, he has expressed opinions that suggest he would support updating the overtime rule to some degree, possibly increasing the salary threshold to mirror inflation. It is also important to be mindful that certain states, including New York and California, have a higher minimum salary threshold than the current federal requirement of $455 per week. We will continue to monitor and report on this important matter as it develops.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VII, Number 116
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About this Author

Jeffrey H. Ruzal, epstein becker green, new york, fair labor, employment
Member

JEFFREY H. RUZAL is a Member in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Mr. Ruzal's experience includes:

  • Representing employers in employment-related litigation in federal courts and before administrative agencies

  • Representing employers in the defense of putative collective actions under the Fair Labor Standards Act and class actions under the New York State Wage and Hour Law

  • ...

212-351-3762
Jeffrey M. Landes, Epstein Becker Green, Employment Litigator, New York Lawyer
Member

JEFFREY M. LANDES is a Member of the Firm in the Labor and Employment practice, in the firm's New York office.

Mr. Landes' experience includes:

  • Counseling clients in a variety of industries—including financial services, retail and communications—in all facets of employment law, including compliance with EEO laws and other statutes governing the workplace, independent contractor issues, executive terminations, restrictive covenants, drug testing, background checks, employee discipline and...

212-351-4601
Marc-Joseph Gansah, Epstein Becker, Employee Handbook Preparation Lawyer, Workplace Discrimination Attorney
Associate

MARC-JOSEPH GANSAH  is an Associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Mr. Gansah:

  • Advises clients on designing, implementing, maintaining, administering, and terminating employee benefit plans

  • Counsels clients on executive compensation issues, including incentive compensation arrangements, and stock option plans with a concentration on cross-border executive compensation

  • Assists in representing employers in in arbitration and mediation before FINRA and JAMS...

212-351-4618
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