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Friday, December 9, 2016

DOL updated Overtime Rule is Dead

By Tommy Eden

The Fifth Circuit on Thursday agreed to accelerate the U.S. Department of Labor’s appeal of an injunction blocking its revised overtime rule for white collar workers, requiring briefing in the case to be completed by the end of January 2017.

In its order, the Fifth Circuit said it will schedule oral argument in the case for the first available sitting after the close of briefing. The DOL requested an expedited appeal of a nationwide preliminary injunction issued by U.S. District Judge Mazzant on November 22 that its revised overtime regulations for white collar workers likely exceeded the agency’s authority.

Judge Mazzant blocked regulations that would have doubled the salary threshold for executive, administrative and professional workers, referred to as white collar workers, to be exempt from overtime pay requirements, impacting a projected 4.2 million workers. The DOL’s revision set the new floor at $47,476 a year salary and created an index for future increases, and was set to take effect on Dec. 1, 2016.

The DOL’s opening brief is due by Dec. 16 and any amicus groups wanting to file in support of the DOL must get their briefs to the court by Dec. 23, according to the order. The states’ response is due by Jan. 17, with any amicus briefs on their side due by Jan. 24. The DOL’s final reply brief is due Jan. 31, 2017.

Common Sense Counsel: The DOL updated Overtime Rule is Dead. The Briefing time has been stretched out so that Donald Trump will instruct his new DOL Secretary of Labor to kill this Obama Administration overreach. Incoming Secretary of Labor in the Trump Administration, Andrew F. Puzder is the CEO of CKE Restaurants, Inc. who has been called a “poster CEO for the regulatory reform effort,” has been a frequent lecturer at colleges and universities and a guest on business news programs including “Your World w/ Neil Cavuto,” “The O’Reilly Factor” with Bill O’Reilly, “Mad Money” with Jim Cramer, “Fast Money,” “Power Lunch” “Lou Dobbs Tonight” and “Squawk on the Street.” He recently co-wrote the book Job Creation: How It Really Works and Why Government Doesn’t Understand It. Puzder is a frequent author on economic and legal issues in periodicals such as Human EventsPolitico, and the Orange County Register. n 2011, Puzder received the honor of contributing to Believe in America, Mitt Romney’s Plan for Jobs and Economic Growth. He was an Economic Adviser is a spokesman for the Romney Campaign for President. Puzder also served as a Delegate to the 2012 Republican National Convention and as the Chairman of the Platform Committee’s Sub-Committee on the Economy, Job Creation and the Debt.

In the words of a former administrator of the DOL’s wage and hour division, under President George W. Bush, Puzder’s likely nomination signals to employers that the DOL during the next administration “is going to operate in a more traditional and realistic way that recognizes most employers are trying to do right by their workers. …What we’ve seen in the Obama administration is the view that employers are not stakeholders but are lawbreakers. Under the next administration, effective enforcement of employment laws will include employers as part of the solution and not part of the problem.”

In a televised interview just days before the election, a Fox Business Network panel led by host Maria Bartiromo asked Puzder whether he would want to serve in Trump’s Cabinet. Puzder said “if the president asked me to serve, I would serve," but he later added that “I think it would be the most fun you could have with your clothes on to be in this Cabinet and get things going. It would be an amazing experience.”

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 205.222.8030