Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the Bloomberg BNA Daily Labor Report, in “Trump Overtime Pay Rule Slow Out of Gate,” by Jaclyn Diaz and Ben Penn. (Read the full version – subscription required.)

Following is an excerpt:

The Labor Department has shown scant signs of progress on revising an Obama-era rule to expand overtime pay eligibility, more than a year after embarking on its mission.

The Trump DOL’s latest soft target for a proposed rule is January 2019, after initially aiming for a fall 2018 release. A federal judge shot down the 2016 rule, which would have qualified an additional 4 million workers for time-and-a-half pay. An appeal of that decision is on hold to allow time for Labor Secretary Alexander Acosta to develop what’s expected to be a more narrow update.

Some overtime-rule watchers wonder if the DOL’s Wage and Hour Division will be able to successfully introduce a new regulation by early 2019, given ongoing leadership changes and at least a handful of competing wage-hour rulemakings in the queue. Perhaps the biggest obstacle is the threat of lawsuits from both worker and management attorneys, DOL personnel from prior administrations told Bloomberg Law.

There are already rumblings that the administration is at risk of failing to complete a rule before a possible White House flip after the 2020 election. …

Arguably the most pressing issue for Acosta, a former federal prosecutor and law school dean, is whether his new rule could be overturned by a judge.

“If the department goes further, though, and has automatic updating of the salary level, I suspect there will be litigation,” Paul DeCamp, who ran the WHD under President George W. Bush, told Bloomberg Law. Many management-side attorneys think federal law doesn’t allow for automatic updates to policy unless there’s a new rulemaking process to approve it, he said.

There’s speculation that the department is considering a salary threshold somewhere in the mid-$30,000 range. Raising that dividing line to $40,000 or higher would also assure litigation by employers, DeCamp said. The federal judge in Texas who blocked the Obama rule said the administration acted in an “arbitrary and capricious” manner by going too high too fast.


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