Friday, December 2, 2016

Employment Rules Update: DOL Overtime Rule Still Blocked Pending Appeal, While OSHA Rule Survives Initial Challenge

For those in the employment law and human resources fields, there are lots of moving targets to track this holiday season. Two of those moving targets include the temporary block placed on the U.S. Department of Labor’s (DOL) new federal overtime rules and a pending legal challenge to a new OSHA rule.

DOL Overtime Rule

As discussed in our post last week, a federal district court in Texas has issued a nationwide injunction blocking implementation of the new DOL overtime rules that were set to go into effect on December 1st. Yesterday, the DOL appealed the district court’s ruling to the U.S. Fifth Circuit Court of Appeals. Despite this appeal, the injunction currently remains in effect. As such, the minimum weekly salary that employers must pay to “white collar” exempt employees subject to the federal Fair Labor Standards Act’s (FLSA) continues, for the time being, to be $455 per week rather than the $913 weekly minimum set forth in the new DOL rules.

Through its appeal filed this week, the DOL will ask the Fifth Circuit to reverse the Texas district court’s injunction ruling. It is unclear how quickly the Fifth Circuit will hear and decide the DOL’s appeal. According to the Fifth Circuit’s website, the median time for resolution of an appeal, from the filing of an appeal to an opinion, is just under nine months. The timeline for the current appeal, however, is unknown. The Fifth Circuit typically prioritizes its consideration of appeals of preliminary injunction rulings. However, it took nine months to issue an order in a 2015 appeal of a preliminary injunction regarding a U.S. Department of Homeland Security (DHS) rule.

One wild card is whether the DOL will ask the Fifth Circuit to temporarily stay (i.e. temporarily reverse) the Texas district court’s order pending the outcome of the DOL’s appeal. If such a motion is filed and granted by the Fifth Circuit, the DOL would be able to enforce its new overtime rules while its appeal is pending. The Fifth Circuit is not required to grant a stay and could take months to resolve any motion for a stay that might be filed by the DOL. In the DHS appeal above the Fifth’s Circuit’s order deny the stay was issued three months after the district court’s order.

As such, it appears unlikely that the nationwide injunction will be altered before President-elect Donald Trump’s inauguration on January 20, 2017. The Trump administration may have time to decide if it wants to continue to pursue the DOL’s appeal and implementation of the overtime rules before the Fifth Circuit makes any decision or instead retract or modify the rules.

OSHA Rule

In related news, a court challenge to OSHA’s recent final rule regarding workplace injury and illness reporting has not resulted in any delay in the implementation of the rule. As discussed in prior posts (see prior posts here and here), employers were to comply with new OSHA anti-retaliation requirements by August 10, 2016, and some employers will face new electronic reporting requirements as of January 1, 2017.

Industry trade associations have brought a lawsuit challenging the new OSHA rule in Texas federal court. As part of that lawsuit, a motion was made for a nationwide injunction to temporarily block the new OSHA rule. This motion was, however, denied. As a result, the court challenge will continue, but OSHA will be allowed to implement its rule on its initial timetable. As such, if your workplace has not taken steps to comply with the OSHA rule, some parts of which are already effective, it should do so now.

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