The Fifth Circuit Court of Appeals has set oral argument for October 3rd (revised 8/30/2017) on the Obama-era overtime pay rule that has been blocked from government enforcement by a federal district court in Texas since last November. The DOL under the Trump administration already has backed away from the government’s previous position, asserting in its appellate brief that it will not continue to advocate for the salary level set forth in the final rule but instead will undertake further rulemaking to determine what the proper salary level should be. To that end, in late July the DOL issued a public request for information in anticipation of new rulemaking setting forth a lower salary level. The DOL continues to argue on appeal, however, that it has the statutory authority to establish a salary level test, contrary to the conclusion of the district court. It will be interesting to see how the DOL asks the Court to confirm its authority to set a salary level and reverse the district court on that point, but at the same time, not revive the Obama Final Rule that the DOL is now on a path to replace.
Notably, oral argument before the Supreme Court is set one day earlier in NLRB v. Murphy Oil USA and consolidated cases, to address the validity of class and collective action waivers in employment arbitration agreements. The Court’s holding no doubt will have a significant impact on wage and hour class and collective actions going forward and is another matter in which the new administration has parted ways from its predecessor, the Department of Justice recently asserting in its brief to the Court that such waiver provisions are valid and enforceable. So, the week of October 2nd is shaping up to be a big day for employers.