By Scott R. Flick
What a difference a day makes.
As previously discussed in CommLawCenter, the Department of Labor announced in May a change to its overtime regulations. That change would more than double the minimum salary needed to qualify an employee as exempt from overtime pay, and was scheduled to go into effect on December 1, 2016. Because the change in the overtime-exempt minimum salary was so dramatic (moving from $23,660 to $47,476 annually) the business community has been seeking to block it or at least mitigate its impact. As part of that effort, Senator Lamar Alexander of Tennessee recently introduced S.3464 in the Senate, which would phase in the higher salary threshold over several years, and offer some relief to nonprofits, colleges and universities, certain health care providers, and state and local governments.
As we noted a few weeks ago, however, the likelihood of that legislation becoming law before December 1 is slim, particularly given that President Obama is likely to veto any bill that threatens to undercut the goal of using more overtime pay to help rebuild the middle class. Taking a different tack, the State of Nevada and twenty other states brought suit against the Department of Labor’s new regulations in the U.S. District Court for the Eastern District of Texas. A similar suit brought in that court by the Plano Chamber of Congress and over fifty other business organizations was recently consolidated with the 21 States’ suit.
In response to a motion filed by the 21 States, the District Court today granted a nationwide preliminary injunction, preventing the new salary threshold (and scheduled increases to it in future years) from going into effect until the court has had an opportunity to rule on the legality of the rule change. In doing so, the court made clear that the Department of Labor will have a hard time defending it. Under the Fair Labor Standards Act (FLSA), Congress exempted from overtime pay those employees who are employed in a “bona fide executive, administrative, or professional capacity”, and authorized the Department of Labor to adopt, and from time to time update, regulations defining which employees fall into those categories.
In granting the preliminary injunction, the court found that the Department of Labor had exceeded that authorization by including a salary component in addition to the “duties” test embedded in the statute:
After reading the plain meanings together with the statute, it is clear Congress intended the EAP exemption to apply to employees doing actual executive, administrative, and professional duties. In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level.
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[The FLSA] authorizes the Department to define and delimit these classifications because an employee’s duties can change over time…. While this explicit delegation would give the Department significant leeway to establish the types of duties that might qualify an employee for the exemption, nothing in the EAP exemption indicates that Congress intended the Department to define and delimit with respect to a minimum salary level. Thus, the Department’s delegation is limited by the plain meaning of the statute and Congress’s intent. Directly in conflict with Congress’s intent, the Final Rule states that “[w]hite collar employees subject to the salary level test earning less than $913 per week will not qualify for the EAP exemption, and therefore will be eligible for overtime, irrespective of their job duties and responsibilities.” With the Final Rule, the Department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.
Further buttressing his preliminary findings, the judge added that:
The Department has admitted that it cannot create an evaluation “based on salary alone.” But this significant increase to the salary level creates essentially a de facto salary-only test. For instance, the Department estimates 4.2 million workers currently ineligible for overtime, and who fall below the minimum salary level, will automatically become eligible under the Final Rule without a change to their duties. Congress did not intend salary to categorically exclude an employee with EAP duties from the exemption. [Cites omitted for clarity.]
It seems likely the Department of Labor will seek an immediate appeal of the preliminary injunction for two reasons. First, of course, is the fact that the federal government hoped that once the rule change went into effect on December 1, it would be politically impossible to reduce the salary threshold without incurring the ire of millions of employees now receiving overtime pay. Second, and a more recent development, is that if the preliminary injunction holds, and the court case continues beyond January 20 (as it will), a Department of Labor within the Trump administration might no longer be interested in defending the rule change, effectively letting the preliminary injunction become permanent.
On top of that, if the final result of the court case is a ruling that any increase over the existing $23,660 annual salary requirement is impermissible without a statutory change, then the drastic increase in the salary threshold attempted by the Department of Labor will have backfired. Any effort to adopt a more moderate increase in the salary threshold would run headlong into the court’s decision here. And the law of unintended consequences strikes again.
