On December 1, 2016, the U.S. Department of Labor (DOL) filed a notice of appeal in Nevada v. U.S. Department of Labor. The appeal comes as a result of a U.S. District Court in Texas issuing a nationwide injunction against the DOL’s new overtime rules that were to go into effect on December 1. The appeal was filed in the U.S. Fifth Circuit Court of Appeals (docket number 16-41606).
On December 2, 2016, the DOL requested an expedited briefing schedule for the appeal:
|December 16, 2016||DOL’s brief to be filed|
|December 23, 2016||Friends-of-the-court briefs supporting the DOL to be filed|
|January 17, 2017||Briefs by opponents to the overtime rules to be filed|
|January 24, 2017||Friends-of-the-court briefs supporting the opponents to be filed|
|February 7, 2017||DOL’s reply brief to be filed|
Although the DOL has requested this schedule, the appeals court doesn’t have to grant it. Indeed, the states that filed suit in opposition to the new overtime rules have opposed this motion and assert that it actually asks for more time than normally allowed for preparing the DOL’s reply brief (21 days instead of only 14).
The key takeaway from this news is that the appeals court will not rule on the new overtime rules until after Donald Trump takes office on January 20—regardless of whether the standard briefing schedule is followed or the DOL’s suggested scheduled is followed. As I have suggested before, this allows the new administration an easy way out of the rules. They simply drop the appeal of the district court’s opinion, allowing the old rules to stay in place. At that point, the new overtime rules will be dead—although there is some speculation that the new administration may implement the rules, just not in one big jump from $455 to $913. (The U.S. House of Representatives has already passed a bill that would phase in the new threshold amount.)
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