On October 30, 2017, apparently in the spirit of Halloween, the Department of Labor gave life to the Obama-era Overtime Rule we previously reported was virtually dead.  The DOL appealed the Texas federal judge’s decision to strike down the Rule.  In a short press release, however, the DOL made it clear that it would request that the court hold the appeal while it “undertakes further rulemaking to determine what the salary level should be.”

What does this mean for us?

This does not mean that the Obama-era Overtime Rule has been revived.  But, what it does signal is that the DOL is considering its own change to the current Rule.  Secretary Alexander Acosta’s statements in his confirmation hearing and his actions since being confirmed suggest that a salary increase may be coming.  The DOL recently published a “Request for Information” seeking public comment on a revision of the regulation, which drew as many as 165,000 commenters.

Why appeal the decision?

The DOL’s decision to file an appeal was likely a strategic decision to preserve its ability to effectively revise the Rule in the future.  Much of the Texas federal judge’s reasoning for striking the rule centered on the drastic salary increase.  In fact, the judge’s decision raised questions as to whether it was clear that the DOL had the authority to use salary as a basis for defining exemption under the FLSA.  Therefore, the DOL likely filed the appeal to make certain that the judge’s decision did not restrict its ability to issue a revised rule in the future.

We will continue to monitor these developments.  Please do not hesitate to contact us if you have any questions regarding the FLSA Overtime regulations, or this update.