While perhaps slightly less anticipated by the masses than Rogue One: A Star Wars Story, many are closely watching the developments regarding the FLSA overtime rule that would nearly double the salary threshold necessary for employers to retain exempt status (i.e., not eligible for overtime) for many workers.
As we previously reported, the implementation of the rule was set to start December 1, 2016. However, a federal court in Texas issued a nation-wide preliminary injunction. Thus, the salary threshold for exempt status has remained, for now, $23,600.
That decision was appealed to the Fifth Circuit, which has approved an expedited briefing schedule that has the first brief due on December 16. The last brief is due January 24, 2017. Oral argument is to be scheduled as soon as possible after the close of briefing.
President-Elect Trump will take office before briefing is concluded. The appeal is being driven by the Department of Labor (who is the appellant), which ultimately is directed by the President. Although the appeal began under the Obama Administration, the appeal would be driven under the Trump Administration while briefing is still underway – before a ruling is made.
President-Elect Trump has named Andrew Puzder as the next Department of Labor secretary. Mr. Puzder has been the head of CKE Restaurants, Inc. for many years and was Executive Vice President and General Counsel before that. In 2010, Mr. Puzder received an award from the International Food Service Manufacturers Association for his dedication to the food service industry.
Many restaurants (like employers generally) find themselves struggling with FLSA compliance. Indeed, the restaurant industry is a target area for Labor Department investigations. The FLSA can be tricky. Where someone looks for a misstep with the FLSA, missteps often can be found (even for employers with the best of intentions). Thus, as one might expect, restaurants have had many violations found by the Labor Department in recent years.
What will be the Trump Administration’s approach to the rule that presently is stayed? Will it be retained? Will the Trump Administration direct the Department of Labor to abandon an appeal? Will the Fifth Circuit affirm the trial court’s preliminary injunction? Ultimately, what will become of the rule nearly doubling the salary threshold for exempt status?
Only time will tell. Stay tuned as briefing unfolds, beginning this week, in the current appeal. Of course, the first brief comes out on the same day that Rogue One: A Star Wars Story starts showing. Grab the popcorn . . . the day will be action packed for entertainment!