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


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, 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.

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