Dec 12, 2016

Fifth Circuit Court of Appeals Grants Department of Labor's Request for Expedited Briefing and Oral Argument Schedule

Alert | Employment Services Alert

On December 8, the United States Court of Appeals for the Fifth Circuit granted the Department of Labor’s (“DOL”) motion for an expedited briefing and oral argument schedule in its appeal of the District Court’s grant of a nationwide injunction against the implementation of the new Fair Labor Standards Act (“FLSA”) overtime regulations.

Since the District Court’s issuance of a nationwide preliminary injunction barring the enforcement of the new FLSA regulations, there has been no shortage of developments. Following the DOL’s Notice of Appeal on December 1, the DOL filed a motion seeking an expedited briefing and oral argument schedule on December 2. In response — and as expected — on December 5, the appellees strongly opposed the expedited appeal. As a matter of course, the DOL replied further in support of its request on December 6.

The first briefing deadline is set for December 16, and briefing is set to close no later than January 31, 2017. Following the expedited briefing schedule, oral argument is set to be scheduled for the first available sitting day after the close of briefing.

The question now is how significant is this victory for the DOL? In light of the incoming Trump administration and a newly-appointed Secretary of Labor, maybe it is no victory at all. Following President-Elect Trump’s swearing-in on January 20, 2017, all cabinet nominees will be presented to the Senate for confirmation. With a Republican Senate, it is likely that Trump’s nominees, including the newly appointed labor secretary, will be confirmed before the close of briefing and oral argument. If this in fact happens, the DOL will be celebrating a hollow victory. This becomes especially true following President-Elect Trump’s nomination of Andrew Puzder as his labor secretary. Puzder has publically expressed strong positions against the DOL’s proposed overtime rule in its current form. If confirmed, it is expected that Puzder will withdraw the appeal. 

If you have any questions about this topic, read our previous alert or contact one of the listed Roetzel attorneys.

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