After dropping the Obama-era appeal of an injunction against that administration’s proposed overtime rule, sources say the Department of Labor (DOL) is poised to return to court to argue against the permanent injunction issued this summer by Judge Amos Mazzant.
The reason appears to be to preserve the use of a salary threshold in determining overtime limits. The Trump administration had asked the court to reject the Obama overtime rule while retaining the regulatory use of a salary threshold, which Judge Mazzant then cited as one of the main reasons he was issuing a permanent injunction.
The Obama DOL, while leaving all overtime duties test unchanged, tried to raise the salary threshold for overtime exemption from $455 a week, or $23,660 annually, to $913 weekly, or $47,476 a year. That part the Trump administration argued against in court.
Now the DOL is evidently set to argue against the injunction before the 5th U.S. Circuit Court of Appeals in New Orleans, arguably the most conservative appellate court in the U.S., but the one with review power over Judge Mazzant and his decisions.
In his confirmation hearings before the Senate, Secretary of Labor Alexander Acosta said he thought a threshold in the $30,000 range would be appropriate. Accordingly, sources say the department is hoping to preserve the use of a threshold, but to peg it at $32,000 to $35,000 a year.
The Society for Human Resource Management (SHRM), for example, has thrown in its support behind a $32,000 salary threshold.
Overtime is guaranteed under the 1938 Fair Labor Standards Act (FLSA), but through the decades since, the Department of Labor has used its regulatory authority regarding many of the standards contained therein, including overtime, child labor, tip credits and other workplace concerns.