On January 25, 2017 the U.S. Department of Justice (DOJ) asked the Fifth Circuit Court of Appeals in Louisiana to delay litigation over implementation of new overtime rules which would have dramatically increased the minimum salary threshold for exempt employees.  The DOJ requested an additional 30 days to file its final reply brief in a case challenging the U.S. Department of Labor’s (DOL) overtime rule.  According to the DOJ, the extension “is necessary to allow incoming leadership personnel adequate time to consider the issues.”

Translation—President Trump needs time for Labor Secretary Nominee Andrew Puzder to be confirmed and decide whether the DOJ, which represents the DOL, will withdraw its appeal that seeks to reinstate the overtime rule.  Mr. Puzder has publicly criticized the overtime rule.  It is widely expected that under his leadership the DOJ will abandon the prior administration’s changes to overtime regulations altogether.  If the appeal is withdrawn it will leave in place the court’s injunction blocking the overtime rule.

Anticipating that the DOJ may withdraw its appeal, and perhaps withdraw from the underlying action altogether, the AFL-CIO recently asked to intervene in the litigation.  If permitted to intervene, the AFL-CIO would continue the appeal and seek to reinstate the overtime rule even if the DOJ withdraws.

Plaintiffs consented to the DOJ’s extension request, which ordinarily would be granted under such circumstances.  However, since the DOJ asked the court just last month to expedite the appeal which it now wants delayed, it’s unclear whether the request will be granted.  If the request is denied, the DOJ will have to act quickly as its reply brief is currently due January 31, 2017.

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