Paul DeCamp, a Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the POLITICO Morning Shift, in “DOL to Appeal Overtime Ruling,” by Marianne Levine.

Following is an excerpt:

The Labor Department will appeal today a federal judge’s decision to block the Obama administration’s overtime rule. Finalized in May 2016, the rule doubled (to $47,476) the salary threshold under which virtually all workers are guaranteed time-and-a-half pay if they work more than 40 hours in a given week. But the rule never took effect because a federal judge in Texas issued a preliminary injunction against it. In August, that same judge, Amos Mazzant, made the preliminary injunction permanent by granting summary judgment to business groups challenging the rule. In his opinion, Mazzant wrote that the Labor Department had “exceeded its authority and gone too far with the Final Rule.” That language was less restrictive in defining DOL’s authority than the language in Mazzant’s preliminary injunction had been, prompting many observers to conclude DOL wouldn’t bother to appeal the permanent injunction. They were wrong.

A Labor Department official told the Wall Street Journal that “by filing the appeal the department is seeking to maintain Secretary Alexander Acosta’s ability to establish overtime regulations.” The official added that the appeal shouldn’t be interpreted as an endorsement of the 2016 threshold. The Trump administration has already indicated that it plans to rewrite the rule. In July, the Labor Department issued a request for information on the Obama administration overtime rule. At his confirmation hearing, Acosta seemed to suggest that he’d favor raising the salary threshold to around $33,000 but said an increase to $47,476 “goes beyond a cost of living adjustment.”

“Filing the notice of appeal preserves the option of challenging, if it becomes necessary, the limits the district court placed on the department's rulemaking authority,” Paul DeCamp, former Wage and Hour administrator under President George W. Bush and an attorney with Epstein Becker & Green, told Morning Shift. DeCamp added that “realistically, the department appears to be appealing as a means of buying time to proceed with a new overtime [rulemaking] to [replace] the failed 2016 regulation.”


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