The federal government has been granted more time to figure out what to do about overtime regulations that remain in judicial limbo. A federal appeals court on February 22 granted the U.S. Department of Labor (DOL) its second extension in the proceedings, giving it until May 1 to take a position.
The rules, which were scheduled to take effect December 1, 2016, would have required employers to pay overtime to employees earning less than $913 per week (which amounts to $47,476 annually). The change would have more than doubled the existing threshold.
States and business groups challenged the rule in court and a federal district court judge granted a preliminary injunction, temporarily halting the rules just days before their effective date.
Obama’s DOL appealed the order to the 5th Circuit. Shortly after President Trump’s inauguration, his administration obtained a 30-day extension for its reply brief; it has now received 60 more days, putting the deadline at May 1.
According to the DOL, the extra time is necessary “[t]o allow incoming leadership personnel adequate time to consider the issues.” The agency, however, remains without a Secretary of Labor. Trump nominated Alexander Acosta, a former National Labor Relations Board member, to the position last week after Senate Republicans reportedly didn’t have enough votes to confirm his first pick, Andrew Puzder.
Puzder was an outspoken critic of the overtime rule and was expected to drop the DOL’s defense of the rule. Acosta has not taken a public position on the issue. (For more, see Trump Taps Former NLRB Member to Head DOL After Puzder Withdraws.)
The lower court judge who issued the injunction still could issue a permanent injunction in the meantime, or rule on a pending summary judgment motion. The DOL asked that judge to halt all proceedings while the 5th Circuit reviews the injunction but he declined, saying that the DOL has not shown that it is likely to succeed with its argument that the court erred in issuing the injunction.
In case the DOL drops its defense, a group of labor organizations has asked to take over. While the DOL has represented the group’s interests so far, that is unlikely to continue, it told the court. “With the recent presidential election, and particularly as more information becomes available regarding the incoming Administration’s plans, policy, and appointments, the Texas AFL-CIO has grave concerns as to whether its interests in the Final Rule will be represented by the DOL,” it said.
The plaintiffs, however, argued that the organization’s speculation about the incoming administration’s views doesn’t justify granting its motion. “AFL-CIO proffers no legal basis warranting intervention now, solely based on speculation or concerns about whether the party that is adequately representing its interests now might change its position at some point in the future,” they said, urging the court to deny the request.
The district court has not issued an order on the organization’s motion.
Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.