Feds urge court to expedite appeal of overtime injunction

Attorneys for the U.S. Department of Labor (DOL) filed a motion Friday afternoon asking a federal appeals court to expedite its ruling on DOL’s appeal of a nationwide injunction halting implementation of a new overtime rule.

department-of-labor-sealThe Obama administration’s new overtime rule, which would double the salary level necessary to be exempt from overtime regulations, was set to go into effect this past Thursday, but on Nov. 22 a U.S. district judge in Texas issued a preliminary injunction stopping implementation of the rule pending the outcome of litigation challenging its legality. (In granting injunctions, a court’s principal rationale is the likelihood that one side – the state plaintiffs in this case – ultimately will win the case.)

On Thursday, DOL appealed the district judge’s ruling to the U.S. Fifth Circuit Court of Appeals in New Orleans. Friday’s follow-up motion asks the Fifth Circuit to expedite its ruling on the government’s appeal, noting that the overtime rule “was due to take effect on December 1, 2016, and it provides important overtime pay protections to millions of workers.”

DOL notes in Friday’s request that the state plaintiffs’ counsel “has informed us that plaintiffs oppose expedition of this appeal. Because this expedition motion is time sensitive, we ask that the Court direct plaintiffs to respond no later than December 6, and to issue a ruling by December 8” on whether it will set an expedited schedule for the Obama administration’s appeal of the injunction.

The schedule proposed to the Fifth Circuit Court of Appeals by DOL runs into February, well after the inauguration of Donald Trump, and the government noted in Friday’s filing that its proposed timeline is “considerably more generous than the expedited briefing schedule that was set by the district court at plaintiffs’ request.”

Still, given that the Fifth Circuit’s ruling would come after Trump is president, even a ruling favorable to the current administration – thus restoring the new overtime rule – might be short-lived. Trump has cited the overtime rule as an example of regulatory overreach by the Obama administration.

Consequently, many business groups, including the National Association of Landscape Professionals, have expressed confidence that the preliminary injunction issued Nov. 22 effectively kills the new overtime regulation.

In its filing Friday, DOL asserts that the preliminary injunction was based on an error in law: namely, that the district judge was wrong to state that federal law “does not grant the (Labor) Department the authority to utilize a salary-level test” to determine overtime eligibility.

DOL’s filing cites a 1966 ruling by the Fifth Circuit Court of Appeals that states just the opposite. In that case, the appeals court held that the secretary of labor has broad discretion in defining overtime rules and rejected the argument “that the minimum salary requirement is arbitrary or capricious.”

The new overtime rule doubles the salary threshold necessary to be exempt from overtime requirements from $23,660 to $47,476 a year, meaning people earning less than $47,476 annually would have to be paid 1.5 times their hourly rate for all hours beyond 40 in a single workweek. Stated in terms of weekly pay, the minimum required for exemption from overtime requirements would have risen Dec. 1 from $455 to $913.

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