As we learned on Super Bowl Sunday, nothing good (at least for one party) results from running a game into overtime. Although the past 30 plus days of the new White House administration have seen a whirlwind of activity and controversy, nothing has changed for the FLSA’s proposed Overtime Rules (OT Rules). We are still in overtime, and employers are still in limbo.
As we reported last month, the OT Rules remain before the courts. The Department of Labor’s (DOL) appeal filed in the Fifth Circuit Court of Appeals in New Orleans is still pending. The Court originally issued an expedited briefing schedule; however, the DOL has received an extension until March 2, 2017 to file its final reply brief.
Notably, more than 10 amici curiae (friend of the court) briefs have been filed in the pending appeal. One, from a group of nine law professors who teach and write about the FLSA, seeks to explain to the Court of Appeals why the DOL has the power to adopt different tests. Those law professors urge the Court of Appeals not to “unsettle an almost 80-year-long consensus that the FLSA section 13(a)(1) authorizes DOL to adopt a salary test…” Oral arguments have not been set, and there is no clear indication as to when the Court of Appeals will decide this issue.
At the district court level, the court denied the DOL’s request to stay the case pending the appeal. The district court held that the remainder of the case should proceed. Accordingly, there is some indication that the district court will rule on a fully-briefed Motion for Summary Judgment filed by the chambers of commerce and other business groups seeking to block the OT Rules. Additionally, the district court has not yet ruled on a pending motion filed by the AFL-CIO seeking to intervene in the case.
The DOL Secretary nominee, Andrew Puzder, may likely get confirmed before the courts issue any ruling.* His position on the OT Rules is clear: Mr. Puzder has been an outspoken critic of the OT Rules since 2014, when then-President Obama directed the DOL to revamp the FLSA rules. A Patriots-Falcons-like reversal of fortune could take place if Mr. Puzder is not confirmed, and the Trump Administration surprises us all by standing behind the OT Rules, but there is a better chance of a blizzard in July. For now, it is appears to be a race to see who gets to the goal line first: the Executive or Judicial branch. Either way, the OT Rules may be facing sudden death in overtime.
*Since the time of this writing, Andrew Puzder withdrew his nomination.
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Monica Velazquez, a Partner at Strasburger & Price Law Firm in Dallas, Texas, is a Board-certified labor and employment attorney. For over a decade, Monica has represented private employers, public entities and nonprofits in a variety of labor and employment law matters. Monica defends companies who are faced with discrimination, harassment, retaliation, class actions and other claims under a variety of federal, state and local laws, including the Fair Labor Standards Act, Title VII, ADA, FMLA, USERRA, the Texas Commission on Human Rights Act and other laws.