News & Insights

FLSA Update and Confirmation of a Labor Secretary

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We have written several posts on the FLSA issue. Further information can be found through this blog. This serves as an update.

In the Fifth Circuit, the reply brief for the Department of Labor (“DOL”) was due January 31, 2017. On January 25, 2017, DOL filed an unopposed motion to extend time to file until March 2, 2017, which was said to be “necessary to allow incoming leadership personnel adequate time to consider the issues.” On February 17, 2017, DOL filed a second unopposed motion seeking further extension to file until May 1, 2017. On February 22, 2017, that motion was granted.

In the federal trial court (Eastern District of Texas), a motion for summary judgment was filed to invalidate the DOL rule that is at issue. The DOL sought to stay that motion until the appeal was decided. The court denied that motion. Briefing has continued and the motion has not yet been decided. Also of interest, on December 9, 2016, AFL-CIO filed a motion to intervene – essentially wanting to join the case to argue DOL’s position should DOL choose to abandon its position in the case. That was opposed, ultimately with a sur-reply filed on December 28, 2016. That motion also has not yet been decided.

Of course, all of the above has taken place during the transition from President Obama to President Trump. Thus, DOL leadership has also been in transition. Andrew Puzder, who heads the parent company of Carl’s Jr. and Hardees, was nominated as Secretary of Labor. That nomination faced significant opposition and, on or about February 15, 2017, Mr. Puzder withdrew his nomination. Alexander Acosta has now been nominated. Mr. Acosta has served on the National Labor Relations Board and with the Justice Department. He previously clerked for Justice Samuel Alito when he was a federal appellate judge and is currently the dean of Florida International University’s law school. A Senate panel hearing is set for March 15, 2017.

We will continue to monitor this litigation and the fate of the FLSA rule more generally. We’ll also be watching with interest to learn who the new Secretary of Labor will be and how that might impact labor and employment law.

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