Fifth Circuit fast-tracks overtime appeal – what that means for you

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This article by Frank Cania, president of driven HR – A USA Payroll Company, was originally published in The Daily Record, January 10, 2017.

On December 8, 2016 – the same day as President-elect Trump announced Andrew Puzder as his nominee for Secretary of Labor – the U.S. Court of Appeals for the Fifth Circuit announced that it will fast track an appeal of the preliminary injunction blocking implementation of the updated overtime rules under the Fair Labor Standards Act (FLSA). (See my December 6, 2016 blog post, Overtime rule delayed. So what’s next?)

In the one page order issued by Judge Jennifer Walker Elrod, the appellate court granted the federal Department of Labor’s (“DOL”) motion for an expedited appeal. Under the schedule set by the Fifth Circuit, all briefing is to be completed by January 31, 2017, with oral arguments ordered to begin on the first available date after that date.  

Out of an abundance of caution, and based on the uncertainty surrounding the revised overtime rule, employers should closely monitor the schedules and hours worked for currently-exempt employees who may be entitled to overtime pay if the appeal is successful and the rule is enforced retroactively to December 1, 2016. With that said, there are a few other points to keep in mind:

  • The order to fast-track the DOL’s appeal of the preliminary injunction has no effect on the current status of the overtime rule, currently on hold for all employers.
  • Before either side has an opportunity for oral arguments before the Court, President-elect Trump and the 115th congress will have been sworn in. Both the new administration and the new Congress will have a window of opportunity, although likely a narrow window, to address this issue before the Fifth Circuit issues a decision on the appeal. 
  • If his nomination for Secretary of Labor is confirmed by the Senate, Andrew Puzder will bring a very different perspective to the DOL than currently exists. Puzder, currently CEO of CKE Restaurants (parent company to Carl’s Jr. and Hardee’s), has taken a pro-business stance on most employment-related issues – including strong opposition to the revised overtime rule.  
  • Aside from the uncertain fate of the federal overtime rule, the New York State salary threshold for white-collar exemptions is poised to increase on December 31, 2016. (See my November 2, 2016 blog post, NY State Labor Department gets in rule-making act

As a good friend and FLSA expert said recently, regardless of your stance on this issue, we’re going to be in for some interesting times. Stay tuned…


Posted by Frank Cania, president of driven HR  A USA Payroll Company

Please feel free to contact me at frank@drivenhr.com, or 855-672-4142 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here. 

Click HERE to learn more about Frank Cania, author of Employers’ HR Advisor.

Overtime rule delayed. So what’s next?

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This article by Frank Cania was originally published in The Daily Record, December 6, 2016.

I am officially out of the prognostication business as of November 22, 2016. I will always remember where I was when I heard the news…just 10 days before the effective date, Judge Amos Mazzant, III of the U.S. District Court for the Eastern District of Texas granted a preliminary injunction that blocked the December 1 implementation of the revised Fair Labor Standards Act overtime rule nationwide.

For the second time in a month, and with mixed emotions my wife heard me say, “I was wrong.” (Take a look at my November 2, 2016 Daily Record article, New York State Labor Department Gets In Rule-Making Act, for an explanation of the first, “I was wrong.”) On the one hand, excited for what she believes was an opportunity for personal growth – she feels it’s somehow cathartic to admit such things. On the other hand, incredulous that, with no definite end in sight, she will continue to endure conversations on what has become her least favorite topic. For my part, I find solace in the fact that not a single employment attorney, compliance expert, or HR professional I’ve spoken to saw it coming.
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