Thursday, July 6, 2017

DOL finally states its position in overtime regulation litigation

Welp, we finally have the long-awaited reply brief from the Department of Labor in the overtime regulation litigation (HT: Wage & Hour Litigation Blog). What's their position?
The Department has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be. Accordingly, the Department requests that this Court address only the threshold legal question of the Department’s statutory authority to set a salary level, without addressing the specific salary level set by the 2016 final rule . . . . [T]the Department soon will publish a request for information seeking public input on several questions that will aid in the development of a proposal.
That's a tough position for the Court to accept in my opinion. I mean, it's almost like DOL is asking for an advisory opinion . . . don't actually decide the case that's in front of you, just tell us the lower court got the law wrong but don't tell us whether the actual rule that exists right now can go forward.

If the Court accepts the legal reasoning of DOL, then it could very well just lift the injunction. Then what? We have a rule in place that DOL does not support that will only be in place until they can go through the rulemaking process and set a new level? That sounds messy.