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FLSA salary basis increase put on hold for entire country - what now?

November 23, 2016

Salaries“The Court finds the public interest is best served by an injunction.” With those words, a district court in Texas put on hold the implementation of the new rules applicable to the White Collar Exemptions under the Fair Labor Standards Act (FLSA).

The rules, originally scheduled to go into effect on Dec. 1, 2016, have been indefinitely delayed for employers throughout the United States. 

In granting the injunction, the court stated that the plaintiffs (various states and business groups) challenging the rule had shown a likelihood of success in their arguments that the Department of Labor (DOL) exceeded its statutory authority in issuing the rule. As a result, the court will now spend time reviewing the arguments of both parties in depth before making a final decision. 

The next big date is Jan. 20, 2017, when President-elect Donald J. Trump is sworn in as president. It is not clear what a DOL under President Trump would do with the rule. Watch for hints about what could happen with the rule in the news media over the next few weeks, especially when President-elect Trump names a nominee for secretary of the DOL.

Will the judge lift the injunction and allow the rule to be implemented before Jan. 20, 2017?

The judge has already started the process for accepting arguments from both parties, and it is possible he could make a final decision before Jan. 20, 2017. That decision, however, could be appealed no matter who wins at the district court level. During an appeal, the injunction could remain in place.

Practically, what does this mean for employers?

It means you have options. In large part, an employer’s next steps depend on the message that has been delivered to employees already and systems you have in place to implement the new rule. Has the company informed those to-be-newly-non-exempt employees that they would start receiving overtime compensation as of Dec. 1? If so, then the company will need to decide whether to roll back that promise. (Note that, if you conducted an audit and determined that, based on the employee’s responsibilities they do not meet the duties test, you should nonetheless reclassify them as non-exempt to avoid potential claims in the future). Overtime for those newly non-exempt employees may not be required any longer as of Dec. 1, but a company must balance what is required by law with the human resources impact of taking that potential benefit away from employees.

Watch this blog for more updates as developments occur.

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