A federal appeals court will review the temporary injunction blocking new overtime regulations on an expedited schedule that wraps things up even faster than the U.S. Department of Labor (DOL) had requested. But it still won’t reach a decision until after President-elect Donald Trump’s inauguration, and that could mean the end of the overtime rule, according to some experts.
The 5th U.S. Circuit Court of Appeals granted DOL’s motion for expedited review December 8. The court scheduled most briefing deadlines as DOL had requested but slated final briefs for January 31, rather than the proposed February 7. (State of Nevada v. U.S. Department of Labor, No. 16-41606 (5th Cir. Dec. 8, 2016))
That still puts the court’s decision after the inauguration and some experts have suggested that a Trump DOL would drop the appeal. Michelle Lee Flores, a member of Cozen O’Connor and a contributor to the California Employment Law Letter, told BLR® that’s a real possibility.
If the department dropped the appeal, it would be up to the lower court to decide whether to issue a permanent injunction and kill the rules for good. Based on the judge’s strong language—he called the rule “unlawful”—experts have said he’d likely go through with it.
The plaintiffs, a group of 21 states, had argued against the expedited schedule, alleging that DOL was actually requesting an extension, under the guise of a request to speed things up. “Appellants’ motion actually asks for extra time to file their reply brief—21 days instead of the standard 14,” the states said. “So with regard to the briefing schedule, Appellants’ motion to expedite does not ask this Court to do anything that Appellants could not do on their own volition, except extend the briefing schedule for Appellants’ reply brief.” The states also suggested that DOL’s move may have been designed to prevent them from seeking an extension for filing their own briefs during the holidays.
It does appear that DOL was requesting more time, Flores said. “It looks like what they were asking for actually was extended and the court shortened it to [a normal reply date],” she said.
And while the court didn’t immediately schedule oral arguments, Flores said that February 7, a week after final briefs are due, could be a reasonable estimate.
For more information on how to handle the injunction, see Overtime Rule Injunction Leaves Risks in Every Direction and Overtime in Limbo—What Employers Should Do Now (Infographic).
Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.