Employment & Labor Insider

The U.S. Department of Labor submitted its brief today in Nevada v. U.S. Department of Labor, the case involving the challenge to the Obama Administration's overtime rule.

Some very quick background: The overtime rule, which would have more than doubled the salary threshold for administrative, executive, and some professional exemptions from the minimum wage and overtime requirements of the Fair Labor Standards Act, was issued in May 2016 and was to take effect December 1, 2016. In late November 2016, a federal judge in Texas enjoined the rule. The Obama Administration appealed to the U.S. Court of Appeals for the Fifth Circuit, and then after President Trump took office his Administration requested postponement of the briefing schedule so that it could reassess its position. Many predicted that the Trump Administration would simply withdraw the appeal.

That certainly is not what has happened. The Trump Administration, instead, is disputing the plaintiffs' -- and the district court's -- contention that salary levels are an improper consideration in determining "exempt" status.

In other words, the position of the Trump Administration is pretty consistent with what we could have expected to see from the Obama Administration.

Except for one thing: The Trump Administration is asking the Court not to rule on the validity of the salary threshold in the Obama overtime rule but to allow the Trump Administration to consider setting a different threshold after notice and comment rulemaking. Here's the conclusion from the brief:

[The DOL] requests that this Court reverse the judgment of the district court because it was premised on an erroneous legal conclusion, and reaffirm the [DOL]'s statutory authority to establish a salary level test. The Department requests that this Court not address the validity of the specific salary level set by the 2016 final rule ($913 per week), which the Department intends to revisit through new rulemaking.

Very interesting! So, apparently, the DOL wants the Court to reverse the decision granting the injunction but leave the current (2004) threshold in place? Is that even possible?

Fortunately, we have bigger brains than mine to make sense out of all this. Jim Coleman and Ellen Kearns, the co-chairs of our Wage and Hour Practice Group, are reviewing the decision as we speak and will soon have a more comprehensive analysis.