White-collar overtime rule: DOL appeal update

As an update to our prior alert on the status of the updated overtime rules, the Fifth Circuit Court of Appeals has granted a motion filed by the Department of Labor for an expedited review of the national preliminary injunction issued by the federal District Court.

The order granting the expedited review includes a schedule for when the various written arguments must be filed and requires the final written argument to be filed no later than January 31, 2017. Oral arguments will be scheduled after January 31, 2017. This timing means that the updated overtime rules will not go into effect before the new administration enters office and the 115th Congress is seated.

The new administration and Congress could wait to see how the Fifth Circuit case proceeds before acting to take steps to modify or nullify the updated overtime rules, or they have several options at their disposal to make the updated overtime rules and the ultimate Fifth Circuit decision irrelevant, such as:

• Not enforce the updated overtime rules,
• Instruct the DOL to withdrawal its objection, or
• Modify the current and/or updated overtime rules and the associated regulations.

At this point it is unclear how the incoming administration or Congress will address this issue, if at all, so stay tuned for more updates.