Dive Brief:

• According to Bloomberg BNA, sources "close to the litigation" say the U.S. Department of Labor will appeal a district court judge's permanent injunction that halted an updated Fair Labor Standards Act (FLSA) overtime salary threshold.
• DOL abandoned its defense of the rule at the appellate level, but did ask the court to approve the concept of a salary threshold — something that the lower court questioned in its injunction. Still, the filing is a bit of a "surprise move," BNA says.
• The appeal seems tied to the department's plan to move forward with a lower threshold, possibly in the $32,000 to $35,000 range. President Obama’s DOL had tried to raise the salary threshold for overtime eligibility from $455 per week (which amounts to $23,660 annually) to $913 per week ($47,476 annually).

Dive Insight:

Here, it seems DOL's main concern is the validity of the salary threshold concept. The district court judge questioning DOL's authority to promulgate such a regulation at all of course puts the agency in a bit of an awkward spot.

That injunction, however, was a major win for the employer community. The Obama-era rule was wildly unpopular among businesses, to say the least. But during a comment period on a potential replacement rule, employer groups largely rejected the idea of a duties-only test, meaning that the salary threshold concept generally has support in the business sector. Indeed, most claimed that an update was needed, just not to the extent the Obama-era regulation brought it. The Society for Human Resource Management, for example, has thrown in their support behind a $32,000 salary threshold.

The latest move could be risky for DOL, but it seems that the agency believes its ability to regulate, generally, is at stake.

A spokesperson from the DOL could not be reached for comment.