The DOL has already been granted two extensions in submitting its final brief to the Fith Circuit Court of Appeals for the final overtime rule, but it looks like that still wasn’t enough.
The agency just asked for another 60 days to file its brief on the rule that was put on hold by a Texas judge’s injunction. If granted, which is very likely, the extension would give the DOL until June 30, 2017, to file its reply brief. The final reply brief was slated to be filed on May 1, 2017, following two extension requests by the agency.
As employers have no doubt memorized by this point, the final OT rule raised the salary threshold for white collar exemption from $23,600 to $47,476.
‘Adequate time to consider the issues’
So why does the agency requesting yet another delay?
The extension motion states the delay is necessary “to allow incoming leadership personnel adequate time to consider the issues.”
The motion specifically cites the fact that Secretary of Labor nominee, Alexander Acosta, has yet to be confirmed as a reason for the delay. If and when (again highly likely) Acosta is confirmed, the agency will need to flesh out its current position on the final OT rule.
Employers recently got a glimpse into Acosta’s thoughts on the OT changes.
During his DOL secretary confirmation hearing, despite attempting to dodge queries about whether the Trump administration would defend the overtime rule in court, Acosta did seem to at least indicate that he feels there are problems with the FLSA’s salary threshold under the old overtime rules.
He said it was unfortunate the threshold hadn’t been updated since 2004 and promised those at the hearing he was:
“very sensitive to the fact that it hasn’t been updated since 2004. We now see an update that is a very large revision and something that needs to be considered is the impact it has on the economy, on nonprofits, on geographic areas that have lower wages.”
However, Acosta did say doubling the amount would not only create “a stress on the system,” it might also overstep the DOL’s legal authority.
Legal experts seem to surmise that Acosta’s comment hints at increasing the salary threshold to somewhere between the amount set by George W. Bush in 2004 and the increase finalized by President Obama in 2016.
This story originally appeared on our sister site, hrmorning.com.
