Government to Appeal Decision Blocking Overtime Rule

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By Ben Penn and Tyrone Richardson

Dec. 1 — The Justice Department will ask an appeals court to reverse a nationwide preliminary injunction that blocked implementation of the Labor Department’s overtime rule ( Nevada v. DOL , 5th Cir., No. 4:16-cv-00731, notice of appeal 12/1/16 ).

The federal government, in a Dec. 1 notice of appeal, is turning to the traditionally conservative U.S. Court of Appeals for the Fifth Circuit to restore President Barack Obama’s wage-boosting executive order. The rule would’ve taken effect Dec. 1 and made an estimated 4.2 million workers newly eligible for time-and-a-half pay.

Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas Nov. 22 granted a motion by 21 states to temporarily halt the rule. He found that the Fair Labor Standards Act doesn’t give the DOL authority to create a salary test for overtime exemption.

The FLSA delegates authority to the department to craft the scope of certain classifications of workers who are entitled to overtime.

The DOL finalized a rule in May that doubled the salary threshold below which workers are entitled to overtime—to $47,476 from $23,660. But Mazzant, in what critics say was a break from decades of precedent, said the department should have focused on the actual duties that workers perform, instead of the salary they make.

Trump Urged to Defend Rule

President-elect Donald Trump and his transition team haven’t signaled how they will direct the DOJ to proceed with the case after Inauguration Day.

That’s why a group of about a dozen Democratic lawmakers urged continued support of the rule at a news conference in the Capitol Dec. 1. They pressed Trump to stand behind a campaign promise to working families.

“Every day out on the campaign trail, President-elect Donald Trump said he would take on the rigged system in Washington, D.C., and he would make sure that Washington worked for hard-working Americans. So now it’s time for Donald Trump to make good on his campaign promise,” said Sen. Elizabeth Warren (D-Mass.).

“He can appeal this court decision, or he can ask his friends in Congress right now, the Republicans who run the Senate and the Republicans who run the House, simply to pass a law to make every one of those people eligible for overtime,” Warren said.

Officials at Trump’s transition team did not respond to Bloomberg BNA’s request for comment Dec. 1.

During the news conference, several Democratic lawmakers expressed “bittersweet” thoughts as they spoke on what was supposed to be the first day of the new rule.

“Today was supposed to be a celebration since the Department of Labor rule was supposed to go into effect today,” said Rep. Bobby Scott (D-Va.), ranking member of the House Education and the Workforce Committee. “The overtime rule would have raised the salary for more people entitled to time-and-a-half pay.”

Earnest Speaks Up

Later the same day, White House Press Secretary Josh Earnest echoed the lawmakers' calls to Trump.

“Much was made in the aftermath of the election about how middle-class workers, blue-collar workers supported the Republican nominee based on his promise to shake up Washington, D.C. and ensure that their views were represented,” Earnest told reporters. “He had a rather, you know, variety of colorful expressions for doing this—draining the swamp.”

“And I assume this is part of what he meant—making sure that the hardest-working middle-class Americans are treated fairly,” he added. “Right now, 4 million of them are not; 4 million of them work overtime but aren't paid for it.”

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com; Tyrone Richardson in Washington at trichardson@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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