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Fifth Circuit agrees to expedited appeal of overtime injunction

Good news and bad news.

The U.S. Court of Appeals for the Fifth Circuit granted an expedited hearing for the Department of Labor in litigation over new overtime regulations.

The Labor Department is seeking a hearing in its effort to overturn a trial court’s ruling halting the Obama administration’s proposed regulatory revisions that would have doubled for most employees the salary proposed threshold for overtime pay. Those rules were halted from taking effect on Dec. 1.

The appellate court ordered that oral arguments will be scheduled after Jan. 31, 2017, 11 days after President-elect Donald Trump is set to be inaugurated.

For lawyers advising employers, that timing prompts questions, with speculation that the Labor Department under Trump may drop the appeal.

“Bottom line for employers is unfortunately much uncertainty,” Doug Diaz, a partner with Archer in Haddonfield, New Jersey, wrote in an email.

“In the event the appeal is successful and the overtime rule is enforced retroactively, employers may be liable for overtime to those employees classified as exempt from overtime under the current rules, but not under the new rule,” Diaz wrote.

“At a minimum, employers should therefore keep accurate records of hours worked and ideally, if possible, limit overtime until there is more clarity, in order to reduce any potential exposure in the event of a successful appeal,” Diaz added.

See here and here for the background. Diaz’s email pretty much sums it up. We’ll just have to see what happens in January. The Texas AFL-CIO, which has filed a motion to intervene in the lawsuit, has more.

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