Trump Administration Wants Time to Rethink Overtime Rule

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By Chris Opfer

The Justice Department wants a federal appeals court in Louisiana to pause a case challenging the Labor Department’s pending overtime rule so the Trump administration can decide whether to defend the rule.

DOJ lawyers Jan. 25 asked the U.S. Court of Appeals for the Fifth Circuit for a 30-day extension on the deadline to file a brief in the overtime case ( Nevada v. DOL, 5th Cir., No. 16-41606). The extension is meant to give President Donald Trump’s administration time to consider what to do about the rule.

“We’re concerned that they’re asking for more time because they’re considering reversing their strong support for this important worker protection,” Adina Rosenbaum, a lawyer for Public Citizen Litigation Group, told Bloomberg BNA. Public Citizen filed a friend of the court brief on behalf of congressional Democrats, asking the Fifth Circuit to lift an injunction blocking the rule from going into effect.

Rule Is Temporarily Blocked

Labor Secretary nominee Andrew Puzder is among the business leaders who have criticized the overtime rule, which was expected to make some 4 million workers newly eligible for time-and-a-half pay beginning last month. The DOJ is appealing a decision by a federal judge in Texas to temporarily block the regulation.

The rule (RIN:1235-AA11) was a central piece of President Barack Obama’s labor agenda, designed to put more money in workers’ pockets. Businesses and mostly Republican lawmakers have criticized the expanded overtime pay requirements, saying they would force employers to shed jobs to meet rising payroll costs.

DOJ attorney Alisa Klein, who is representing the Labor Department in the case, declined to comment for this story. Lawrence VanDyke, Nevada’s solicitor general, also declined to comment. Nevada is leading 21 states in the lawsuit.

Next Steps Not Clear

The DOJ’s request to delay the case seems to put the overtime rule on life support. It’s still not clear, however, whether the Trump administration and GOP-led Congress will let it die in the courts or move to scrap or limit the rule.

The problem is that many businesses have already made changes to their pay rates in anticipation of the new rule. Some Republicans have suggested that they would support a smaller overtime eligibility increase, but it’s not clear whether that might be done through legislation or by the DOL withdrawing the rule and issuing a new one via the notice-and-comment process.

Meanwhile, the AFL-CIO is asking to intervene in the Texas federal court proceedings. The labor organization wants to be able to fight to try to save the rule in the event that the Trump administration tells the DOJ to drop the defense.

“We intervened because we’re concerned whether or not the Trump administration will continue to support the overtime rule,” AFL-CIO lawyer Yona Rozen told Bloomberg BNA.

Trial Court Said Government Went Too Far

Judge Amos Mazzant ruled Nov. 22 that the DOL exceeded its authority by focusing on workers’ salaries to determine whether they’re eligible for overtime pay ( Nevada v. DOL, E.D. Tex., No. 4:16-cv-00731, motion granted 11/22/16). The judge said the department should look more closely at the duties that employees actually perform to see if they qualify as “executive, administrative, or professional” workers exempted from overtime requirements.

Mazzant declined the DOL’s previous request to put the case on hold, pending the Fifth Circuit’s review of the temporary injunction. He’s yet to rule on the AFL-CIO’s motion to intervene and a separate request from the states and a number of business groups to block the rule permanently.

“The fact that they’re delaying it another 30 days is good because that means the injunction will stay in place,” Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center, told Bloomberg BNA. “We’ve been fighting this on a lot of different fronts.”

The extension would push the government’s next filing deadline to March 2.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

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

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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