DOJ asks for delay of FLSA overtime rule deadline until June 30

Dive Brief:

  • The Department of Justice asked for another delay to file a brief on behalf of the Labor Department over the overtime rule, reports SHRM. The new deadline request is June 30.
  • Jim Swartz, an Atlanta-based attorney with Polsinelli, told SHRM that the latest filing delay might signal the DOL’s desire to end litigation over the overtime rule, especially without a leader. Alexander Acosta is waiting to be confirmed as DOL secretary.
  • The overtime rule would raise the salary for exempt workers from $23,660 to $47,476 a year, with an automatic increase every three years. But 21 states filed for, and were granted, a motion to block the rule in November. The DOL appealed that decision while the Obama administration was still in office.

Dive Insight:

The request for another delay in filing a brief is likely tied to Acosta’s delayed confirmation. If confirmed, he’s expected to roll back some of the pro-labor measures the previous administration supported.

During his hearing before a Senate committee, Acosta took a "middle ground" on the overtime rule, according to some observers, drawing a line that seems between the original and revised thresholds.

What a long, strange trip it's been. When then-President Barack Obama directed DOL to revise the overtime threshold under the Fair Labor Standards Act, businesses fought back with fervor. Federal judge Amos Mazzant of Texas dealt a decisive blow to the initiative by granting an injunction on the rule's implementation in November.

The transition to a completely different regulatory agenda under President Donald Trump has led many to question whether the DOL will even bother to continue to fight the injunction. Even if the rule is passed, massive proposed budget cuts and a now-expired hiring freeze could have long-term effects on enforcement.

There's also the reality of states that have followed through with enacting their own changes to overtime law, the latest being California. Like other hot-button employment law issues in the past year, from marijuana to right-to-work to minimum wages, there's a safe bet that states will be more outspoken in the realm of legislation.

One strategy for Congressional conservatives at the federal level, however, may be to offer comp time in lieu of overtime. That's the aim of the Working Families Flexibility Act of 2017, sponsored by Rep. Martha Roby (R-AL).

Employers must wait to see if DOL files a brief by June 30, even though a sizeable 29% agree that Trump is likely to signal its end. As Swartz told SHRM, the overtime rule might not be dead, but this last delay could signal the end of litigation.

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