We posted on November 23 about the surprising temporary injunction issued to stop the new overtime rules from going into effect on December 1. Many employers breathed a sigh of relief, but still wondered if this injunction was only a short term reprieve that could be taken away next year. Here are a few things that have happened since the injunction that might shed some light on the future over the new rules:
- On December 1, the Department of Labor filed an appeal of the district court’s injunction to the U.S. Court of Appeals for the Fifth Circuit. The court of appeals granted the DOL’s request to fast-track the appeal, which means all briefs must be submitted by January 31, 2017. That is about 60-90 days sooner than would occur with a normal schedule. It is likely the court will schedule an argument in February and could have a ruling soon thereafter.
- On December 8, President-elect Trump announced Andy Puzder as his nominee for Secretary of Labor. Puzder is the CEO of the company that owns the Hardee’s and Carls, Jr. restaurant chains, and has been a vocal critic of the DOL’s new rules.
- The new overtime rules are on the list of 200 regulations that many members of Congress propose eliminating during the first 100 days of the Trump administration.
While we are not making a prediction, employers have every reason to be optimistic the new rules will at least be modified if not eliminated altogether. It is quite possible the DOL’s appeal will never see the light of day; once Trump is sworn in as president, he can order the DOL to withdraw its appeal and stop defending the underlying litigation, which would effectively make the injunction permanent. As noted previously, Congress may pass a law to overturn the rule. If neither of those occur, the new Secretary of Labor could start the process to rescind or rewrite the rule. The last option would take the longest, as it would first require the Senate to confirm the new Labor Secretary, and then he would have to start the rule-making process. Whatever course the process takes, if you have not taken action to implement the new overtime rules, there is no reason to do so now.