Minimum Salary for the Executive, Administrative, and Professional Exemptions Under the FLSA: DOL Rulemaking Tracker | Practical Law

Minimum Salary for the Executive, Administrative, and Professional Exemptions Under the FLSA: DOL Rulemaking Tracker | Practical Law

A Practice Note tracking the history of the Department of Labor's (DOL) rulemaking to increase the salary threshold for certain white collar exemptions under the Fair Labor Standards Act (FLSA), including the agency's 2016 overtime rule, subsequent litigation, and new rulemaking. This Note summarizes significant administrative and judicial developments.

Minimum Salary for the Executive, Administrative, and Professional Exemptions Under the FLSA: DOL Rulemaking Tracker

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Practice Note tracking the history of the Department of Labor's (DOL) rulemaking to increase the salary threshold for certain white collar exemptions under the Fair Labor Standards Act (FLSA), including the agency's 2016 overtime rule, subsequent litigation, and new rulemaking. This Note summarizes significant administrative and judicial developments.
In May 2016, the Department of Labor (DOL) issued a final rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (81 Fed. Reg. 32,391 (May 23, 2016)). Often referred to as the final overtime rule or the 2016 overtime rule and expected to take effect December 1, 2016, the rule:
However, on November 22, 2016, the US District Court for the Eastern District of Texas issued a nationwide preliminary injunction enjoining implementation and enforcement of the rule as to the EAP exemptions (the status of the HCE exemption salary threshold was unclear) (see Legal Update, DOL's Final Rule Increasing Minimum Salary for FLSA Exemption Enjoined Nationwide: E.D. Texas). The DOL appealed the injunction to the US Court of Appeals for the Fifth Circuit.
On August 31, 2017, the Texas federal court invalidated the rule, concluding that the DOL exceeded its authority by doubling the existing salary threshold and effectively eliminating Congress's duties test. On September 6, 2017, the Fifth Circuit granted the DOL's unopposed motion to voluntarily dismiss its interlocutory appeal. (See Legal Update, District Court Invalidates Obama-Era Overtime Rule and DOL Withdraws Fifth Circuit Appeal: E.D. Texas.)
On October 30, 2017, the DOL filed a notice to appeal the Texas federal court's permanent injunction of the agency's 2016 overtime rule and the Fifth Circuit subsequently granted the DOL's unopposed motion to stay the appeal pending new rulemaking.
The DOL published a Request for Information (RFI) on July 26, 2017, seeking public comment concerning the salary threshold. The agency announced on October 30, 2017 that it would undertake "further rulemaking to determine what the salary level should be" and published its Notice of Proposed Rule Making (NPRM) on March 7, 2019. The DOL announced its final rule on September 24, 2019 and the rule took effect January 1, 2020. (See DOL 2016 Overtime Rule and Subsequent Rulemaking.)
In 2021, the DOL under the Biden administration stated that the salary threshold requirement is again under review. On April 23, 2024, the agency announced a final rule that would increase the standard salary level from $684 to $844, effective July 1, 2024, and to $1,128, effective January 1, 2025. (See 2021 Regulatory Review and DOL 2022-2024 Rulemaking.)
This Note tracks significant developments in DOL rulemaking on the minimum salary threshold, including summaries of administrative and judicial activities, in reverse chronological order.

2022-2024 Rulemaking

Legal Challenges to the DOL's Latest Rulemaking

  • February 15, 2024: Representative Eric Burlison introduced H.R. 7367, the Overtime Pay Flexibility Act, which would prohibit the DOL from finalizing, implementing, or enforcing the 2023 proposed rule.

DOL 2022-2024 Rulemaking

  • April 26, 2024: The DOL's final rule is published in the Federal Register (89 Fed. Reg. 32842).
  • April 23, 2024: The DOL announced its final rule, which is scheduled to increase the annual salary threshold for the executive, administrative, and professional (EAP) exemptions from $35,568 ($684 a week) to:
    • $43,888 ($844 a week), effective July 1, 2024, applying the methodology established in the 2019 rule, based on the 20th percentile of weekly earnings for full-time salaried workers in the lowest-wage census region and/or in the retail industry nationally; and
    • $58,656 ($1,128 a week), effective January 1, 2025, applying an updated methodology based on the 35th percentile of weekly earnings for full-time salaried workers in the lowest-wage census region. (The 2025 threshold exceeds the $55,068 threshold in the DOL's 2023 proposed rule.)
    For the highly compensated employee (HCE) exemption, the minimum total annual compensation level is scheduled to increase from $107,432 to:
    • $132,964, effective July 1, 2024, applying the 2019 methodology based on the 80th percentile of full-time salaried workers; and
    • $151,164, effective January 1, 2025, applying an updated methodology based on the 85th percentile of full-time salaried workers nationwide.
    Beginning July 1, 2027, the salary threshold and minimum annual compensation are scheduled to update every three years, based on current wage data.
    The final rule does not change:
    • special salary levels applicable in US territories; or
    • the special base rate for employees in the motion picture industry.
    Publication of the final rule in the Federal Register is pending.
  • March 10, 2024: The OMB's OIRA completed its review of the DOL's final rule, which is now pending publication in the Federal Register.
  • March 1, 2024: The DOL submitted its final rule to the OMB's Office of Information and Regulatory Affairs (OIRA) for review.
  • December 6, 2023: The DOL published its Fall 2023 regulatory agenda, identifying April 2024 as the target for publication of a final rule.
  • November 7, 2023: The public comment period for the proposed rule closed (88 Fed. Reg. 62152).
  • October 25, 2023: The Senate confirmed Jessica Looman's nomination as the DOL's Wage and Hour Division Administrator.
  • October 10, 2023: Responding to requests to extend the public comment period, the DOL stated that it believes the original 60-day period is "reasonable and adequate" and declined to extend the deadline beyond the original November 7, 2023 end date.
  • September 20, 2023: In Mayfield v. U.S. Department of Labor, a federal district court in Texas, addressing the DOL's 2019 final rule, held that the agency had statutory authority to impose a minimum salary requirement for exemption. The court explained that under both Wirtz v. Mississippi Publishers Corp., in which the Fifth Circuit upheld the DOL's "broad latitude" to define exemptions, and under the two-step Chevron framework, the agency's authority encompassed exemption criteria. The court also rejected the argument that the salary threshold implicated the "major questions doctrine." ( (W.D. Tex. Sept. 20, 2023) (citing Wirtz, 364 F.2d 603 (5th Cir. 1966)).)
  • September 8, 2023: The DOL's NPRM was published in the Federal Register. The 60-day comment period closes November 7, 2023. (88 Fed. Reg. 62152.)
  • August 30, 2023: The DOL's WHD announced an NPRM that would:
    • increase the minimum salary threshold (the "standard salary level") for the executive, administrative, and professional (EAP) exemptions under the FLSA from $684 to $1,059 a week;
    • increase the total annual compensation requirement for the highly compensated employee (HCE) exemption under the FLSA from $107,432 to $143,988;
    • increase the minimum salary threshold for EAP exemptions in American Samoa from $380 to $890 a week;
    • eliminate the special minimum salary threshold for EAP exemptions in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands;
    • increase the base rate for EAP exempt employees in the motion picture producing industry from $1,043 to $1,617 a week; and
    • automatically update earnings thresholds every three years.
    The agency provides additional information on its webpage, Proposal: Restoring and Extending Overtime Protections, including FAQs about the proposed rule. The public comment period will remain open for 60 days after the NPRM is published in the Federal Register (see RIN 1235-AA39).
  • June 13, 2023: The DOL's Spring 2023 regulatory agenda provides that the EAP exemption NPRM is now scheduled for August 2023 (see RIN 1235-AA39).
  • January 4, 2023: The DOL announced its Fall 2022 regulatory agenda, which provides that the EAP exemption NPRM is scheduled for May 2023 (see RIN 1235-AA39).
  • June 21, 2022: The DOL's Spring 2022 regulatory agenda provides that the DOL is reviewing regulations implementing the EAP exemptions. An NPRM is scheduled for October 2022. (See RIN 1235-AA39.)
  • April 29, 2022: The DOL announced a series of listening sessions on possible revisions to overtime regulations affecting minimum wage and overtime pay requirements to exempt executive, administrative, and professional employees.
  • December 10, 2021: The DOL announced its Fall 2021 regulatory agenda, which includes new rulemaking on the salary threshold requirement for the EAP exemptions. An NPRM is scheduled for April 2022.

DOL 2021 Regulatory Review

  • July 29, 2021: The DOL published its semiannual regulatory agenda, identifying the EAP exemption regulations as a "long-term action." The agenda was published in the Federal Register on July 30, 2021. (See RIN 1235–AA39.)
  • June 9, 2021: Labor Secretary Walsh stated in a House committee hearing that the current salary threshold is "definitely" too low and that the DOL is reviewing the regulation "right now." Walsh also stated that he believes automatic updates are necessary and would be considered in the agency's review. (See testimony at approximately 1:29:17.)
  • March 25, 2021: Letter from Senator Brown and US Representatives Takano, Scott, and Adams, to President Biden's Labor Secretary Martin "Marty" Walsh, recommending that the DOL base a new salary minimum on the 55th percentile of earnings of full-time salaried workers nationwide, resulting in a threshold of at least $82,732 by 2026.

DOL 2016 Overtime Rule and Subsequent Rulemaking

  • June 8, 2020: The DOL published a correction to the final overtime rule. The correction is effective June 8, 2020 and:
    • restores paragraphs (b)(3) and (4) of § 541.601, concerning the HCE exemption, which were unchanged but inadvertently omitted from the final rule; and
    • deletes § 541.607, providing for automatic updates to the standard salary level, which was inadvertently included in the final rule (instead the DOL intends to propose increases "from time to time" through rulemaking).
  • January 1, 2020: The DOL's final overtime rule takes effect.
  • September 26, 2019: The US Senate confirmed Eugene Scalia as Secretary of Labor to replace Alexander Acosta.

DOL's Final Overtime Rule Announced September 24, 2019

The DOL announced its final rule on September 24, 2019. Key provisions include:
  • Increasing the minimum salary threshold, which the DOL refers to as the standard salary level, for the executive, administrative, and professional (EAP) exemptions from $455 a week (equivalent to $23,660 annually) to $684 a week (equivalent to $35,568 annually). The minimum threshold was $679 a week in the 2019 proposed rule and $913 under the 2016 final rule. Rather than projecting the salary level to January 2020 as it had in the proposed rule, the DOL used the most recent data available for the final rule, resulting in a standard salary level of $684 instead of $679.
  • Increasing the minimum annual compensation for the highly compensated employee (HCE) exemption from $100,000 to $107,432, including at least $684 a week paid on a salary or fee basis. The minimum threshold in the 2019 proposed rule was $147,414, including at least $679 a week paid on a salary or fee basis, and $134,004 under the 2016 final rule.
  • Allowing employers to use nondiscretionary bonuses and incentive payments, including commissions, that are paid at least annually, to satisfy up to 10% of the required salary level for EAP exempt employees. Employers may use any 52-week period as the year and if no period is specified, the calendar year applies. If an employee's salary plus nondiscretionary bonus, incentive, and commission payments is less than the required salary amount at the end of the 52-week period, employers may make a final catch-up payment within one pay period after the end of that 52-week period. The catch-up payment counts only toward the prior year's salary amount, not the salary amount for the year it was paid.
  • Addressing the special salary levels for workers in US territories, as follows:
    • $455 a week for workers in Puerto Rico, the Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) (while the DOL currently applies the standard salary level to these territories ($455 a week through December 31, 2019), a special salary level of $455 a week will apply when the standard salary level increases in the States on January 1, 2020); and
    • $380 a week for workers in American Samoa (the currently enforced special salary level).
  • Increasing the minimum base rate for otherwise exempt motion picture producing industry employees from $695 to $1,043 a week. The salary basis test does not apply to employees in the motion picture producing industry who are otherwise exempt executive, administrative, or professional employees, if their base rate satisfies a minimum threshold. The minimum threshold in the 2019 proposed rule was $1,036 a week and $1,397 a week under the 2016 final rule.
  • Formally rescinding the agency's 2016 final rule.
Additionally, the DOL intends to update the standard salary level and the HCE total annual compensation level more regularly in the future through public rulemaking. The agency abandoned the automatic increases that were part of the 2019 proposed rule.
The effective date of the final rule is January 1, 2020.
The final rule, a fact sheet, FAQs, and other guidance materials are available on the DOL's webpage, Final Rule: Overtime Update.
For more information on the exemption requirements, see FLSA White Collar Exemptions Checklist.
  • August 12, 2019: The DOL delivered its final rule to the OMB. After the OMB completes its review, the final rule will be published in the Federal Register.
  • July 18, 2019: President Trump announced via Twitter that he will nominate Eugene Scalia to replace Acosta. Trump formally nominated Scalia on August 27, 2019.
  • July 12, 2019: Secretary of Labor Acosta announced his resignation, effective July 19, 2019. Patrick Pizzella, Deputy Secretary of Labor, will serve as acting secretary.
  • May 21, 2019: The public comment period closed.
  • March 22, 2019: The DOL announced that its overtime proposal has been published in the Federal Register. The 60-day public comment period will end May 21, 2019.
  • March 7, 2019: The DOL issued an NPRM that would:
    • increase the minimum salary threshold (the so-called standard salary level) for the executive, administrative, and professional exemptions from $455 a week ($23,660 annually) to $679 a week ($35,308 annually);
    • allow certain nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10% of the standard salary level for the executive, administrative, and professional exemptions;
    • allow employers to make a final catch-up payment within one pay period after the end of each 52-week period to bring an exempt executive, administrative, or professional employee's compensation up to the required level, if certain conditions are satisfied;
    • increase the total annual compensation requirement for the highly compensated employee (HCE) exemption from $100,000 to $147,414, of which $679 a week (currently $455) must be paid on a salary or fee basis (with no change to the current catch-up payment or commission, bonus, and other incentive payment requirements for HCEs);
    • increase the base rate for otherwise exempt motion picture producing industry employees from $695 a week to $1,036 a week;
    • maintain the current special salary levels for certain US territories; and
    • formally rescind the agency's 2016 overtime rule.
    Under the proposed rule, the DOL also intends to propose updates to the salary and compensation levels every four years, with actual updates requiring notice-and-comment rulemaking. The proposal does not provide for automatic adjustments to the salary levels and does not include changes to corresponding duties tests.
    The public may submit comments electronically at www.regulations.gov, in the rulemaking docket RIN 1235-AA20. The comment period is open for 60 days after the NPRM is published in the Federal Register.
  • January 11, 2019: The DOL will submit its draft NPRM to the OMB for review on or before January 11, 2019. No deadline is set for the OMB's review (the 90-day review period may be extended) but publication of the NPRM for public comment is still expected in March 2019, as announced in the DOL's Fall 2018 Regulatory Agenda.
  • October 17, 2018: The DOL's Fall 2018 Regulatory Agenda provides that the minimum salary threshold NPRM is anticipated in March 2019.
  • October 3, 2018: The DOL announced it will hold another public listening session in Washington, D.C., on October 17, 2018. Registration for the October 17 session was reopened on October 11, 2018 to accommodate additional attendees. The listening session is an opportunity for public input on the salary level test, including:
    • the appropriate salary level or range of salary levels for exempt executive, administrative, or professional employees;
    • the costs and benefits that might accompany an increased salary level, such as the effect on real wages, a reduction in litigation costs by reducing the number of employees whose exempt status is unclear, and other benefits resulting from additional certainty concerning exempt status;
    • the best method to determine an updated salary level, such as whether increases should be based on wage growth, cost-of-living increases, actual wages paid to employees, or some other measure; and
    • whether the DOL should more regularly update the salary level and the total-annual-compensation level for highly compensated employees and, if so, how the updates should be made and how frequently, as well as the benefits that might result from more frequent updates.
  • August 27, 2018: The DOL announced it will hold listening sessions to gather views on the white collar exemption regulations. The sessions are open to the public and attendance is free but registration is required. The schedule is as follows:
    • September 7, 2018 – Atlanta, GA;
    • September 11, 2018 – Seattle, WA;
    • September 13, 2018 – Kansas City, MO;
    • September 14, 2018 – Denver, CO; and
    • September 24, 2018 – Providence, RI.
  • May 9, 2018: The DOL's Spring 2018 regulatory agenda provides that the agency intends to issue an NPRM to determine the minimum salary threshold for exempt executive, administrative, and professional employees. The NPRM is anticipated in January 2019.
  • October 30, 2017: The DOL announced that the agency intends to undertake "further rulemaking to determine what the salary level should be."
  • July 26, 2017: The DOL's final RFI concerning the salary threshold for exemption established in the agency's 2016 overtime rule is published in the Federal Register. The RFI includes 11 questions for public comment concerning the salary threshold, including:
    • whether the standard salary level effectively identifies employees who may be exempt;
    • whether a different salary level would more appropriately identify those employees;
    • on what basis the agency should set a different salary level; and
    • why a different salary level would be more appropriate or effective.
    The 61-day public comment period ends September 25, 2017.
  • July 25, 2017: A preview of the DOL's RFI seeking public comment regarding the regulations at 29 CFR part 541, concerning the FLSA's minimum wage and overtime exemptions for executive, administrative, professional, outside sales, and computer employees, is available on the Federal Register website. A final, official version of the agency's RFI, "to gather information to aid in formulating a proposal to revise the part 541 regulations," is scheduled for publication on July 26, 2017.
  • June 30, 2017: In the DOL's reply brief filed with the Fifth Circuit in State of Nevada, et al. v. Department of Labor, et al., Case No. 16-41606 (on appeal from the US District Court for the Eastern District of Texas), the DOL asks the Court to reaffirm the agency's statutory authority to establish a salary level test, but requests that the Court not address the validity of the specific salary level set by the 2016 overtime rule, "which the Department intends to revisit through new rulemaking."
  • June 27, 2017: The DOL sent an RFI related to the final overtime rule to the OMB for its review. The public will have an opportunity to comment once the RFI is published.
  • June 27, 2017: The DOL announced that it is reinstating the use of opinion letters, one of the agency's methods for providing guidance to employers and employees. A new webpage provides links for requesting an opinion letter and reviewing the agency's existing resources.
  • June 7, 2017: DOL Secretary Acosta informed a House committee that the DOL would issue an RFI concerning the currently enjoined final overtime rule in the next two to three weeks. An RFI seeks input from the regulated community about a particular topic in the form of comments and answers to specific questions.
  • April 27, 2017: The Senate confirmed Alexander Acosta as Labor Secretary.
  • March 22, 2017: Labor Secretary nominee Alexander Acosta's Senate confirmation hearing.
  • February 17, 2017: President Trump named his second nominee for Secretary of Labor, Alexander Acosta, a former National Labor Relations Board member.
  • February 16, 2017: President Trump’s nominee for Secretary of Labor, Andrew Puzder, withdrew from the approval process.
  • January 20, 2017: President Trump took office and Reince Priebus, Assistant to the President and Chief of Staff, issued a memorandum directing a "regulatory freeze pending review." The memorandum addresses regulations at three stages of review:
    • Regulations not yet sent to the Office of the Federal Register (OFR). These regulations are not to be sent to the OFR until reviewed and approved by the new administration.
    • Regulations sent to the OFR, but not yet published in the Federal Register. These regulations are to be immediately withdrawn.
    • Regulations published in the Federal Register, but which have not yet taken effect. The effective date of these regulations is to be temporarily postponed for 60 days from January 20, 2017.
    The DOL's final overtime rule does not appear to fit cleanly into any of these categories. The DOL's rule has already been published as final in the Federal Register and its effective date (December 1, 2016) has already passed.
  • December 1, 2016: Effective date of the DOL's final overtime rule (enjoined nationwide as of November 22, 2016).
  • July 7, 2016: The DOL published a Q&A from its June webinar explaining the final overtime rule. The Q&A and other compliance materials are available on the agency's final rule website.
  • May 18, 2016: The DOL announced that it will publish its final overtime rule (see Legal Update, DOL's Final Rule Doubles Minimum Salary Required for White Collar Exemptions Under the FLSA).
  • March 14, 2016: The DOL submitted its final overtime rule to the OMB.
  • November 19, 2015: The OMB's Office of Information and Regulatory Affairs published its Fall 2015 Regulatory Agenda, identifying a July 2016 timetable for publication of the DOL's final overtime rule (see Legal Update, DOL Announces July 2016 Timetable for Final Rule on Revised FLSA Regulations).
  • September 4, 2015: The 60-day comment period ended with over 270,000 comments from individuals and organizations (81 Fed. Reg. 32,397).
  • July 6, 2015: The DOL published its NPRM in the Federal Register. The DOL also published a fact sheet to explain key provisions of the proposed overtime rule. (See also Expert Q&A: The DOL's Proposed FLSA Overtime Regulations.)
  • June 30, 2015: The DOL announced its proposed overtime rule (see Legal Update, DOL Issues Proposed Rulemaking to Expand FLSA Overtime Protections).
  • May 5, 2015: The DOL announced it had submitted its final overtime rule to the Office of Management and Budget (OMB) (see Legal Update, DOL Has Submitted Long Awaited Proposed FLSA Regulations).

Obama Presidential Memorandum

Federal Litigation: State of Nevada v. US Department of Labor

US Court of Appeals for the Fifth Circuit

  • April 16, 2019: The DOL's status report provides that the agency is "actively engaged in the rulemaking process."
  • February 15, 2019: The DOL's status report provides that the agency is "actively engaged in the rulemaking process."
  • February 8, 2019: The court granted an unopposed motion to dismiss the governor of Maine from the case.
  • February 1, 2019: The court granted an unopposed motion to dismiss the State of Nevada from the case.
  • December 21, 2018: The DOL's status report provides that the agency "remains actively engaged in the rulemaking process." The State of Nevada filed an unopposed motion for its dismissal from the case. The other state plaintiff-appellees will remain.
  • November 5, 2018: The DOL's status report provides that the agency "remains actively engaged in the rulemaking process" and projects a March 2019 publication for its Notice of Public Rulemaking.
  • October 4, 2018: In a related appeal, oral argument on the contempt order granted by the Eastern District of Texas against non-party Plaintiff Carmen Alvarez, in favor of non-party Defendant Chipotle Mexican Grill, Inc., is tentatively scheduled for the week of December 3, 2018. (5th Cir. Docket No. 18-40246; see US District Court for the Eastern District of Texas).
    The court held oral argument on December 5, 2018. On March 18, 2019, the court granted an unopposed motion to dismiss the State of Nevada from the case.
    No further tracking of the Chipotle appeal is provided in this Note. For future developments in that case, see 5th Cir. Docket No. 18-40246.
  • September 4, 2018: The DOL's status report provides that the agency "has been analyzing the legal and policy issues" and is "currently engaged in the rulemaking process." The next status report is due in 60 days.
  • May 7, 2018: The court's status report provides that the DOL "has been analyzing the legal and policy issues" and "has initiated the rulemaking process." The next status report is due in 180 days. (On July 6, 2018, the court changed the status report intervals to 60 days instead of 180 days.)
  • November 6, 2017: The court granted the DOL's unopposed motion to stay the appeal pending new rulemaking. The court will revisit the stay on May 7, 2018.
  • November 3, 2017: The DOL filed an unopposed motion requesting that its appeal be held in abeyance pending the outcome of new rulemaking.
  • October 30, 2017: The Department of Justice (DOJ), on behalf of the DOL, filed a notice to appeal the Texas federal court's permanent injunction of the agency's 2016 overtime rule. According to a DOL announcement, after the appeal is docketed, the DOJ will move to hold the appeal in abeyance "while the Department of Labor undertakes further rulemaking to determine what the salary level should be."
    The appeal is likely intended to preserve the DOL's authority to set a minimum salary for exemption, particularly in light of that portion of Judge Mazzant's opinion that the agency had "exceeded its authority" when it doubled the existing threshold.
    (5th Cir. Docket No. 17-41130.)
  • September 6, 2017: The court entered a clerk's order dismissing the DOL's appeal, pursuant to the agency's unopposed motion for voluntary dismissal under Federal Rule of Appellate Procedure 42(b).
    In light of the dismissal, the court denied as moot the parties' joint motion requesting that oral argument be continued and the appeal held in abeyance.
    (See Legal Update, District Court Invalidates Obama-Era Overtime Rule and DOL Withdraws Fifth Circuit Appeal: E.D. Texas.)
  • September 5, 2017: The DOL filed an unopposed motion to dismiss its interlocutory appeal as moot in light of the August 31, 2017 summary judgment decision by the Eastern District of Texas.
  • August 31, 2017: The parties filed a joint motion requesting that the October 3, 2017 oral argument be continued and the appeal held in abeyance pending further discussion of narrowing the scope of the dispute and potentially eliminating the need for the appeal.
  • August 24, 2017: The case is calendared for oral argument on October 3, 2017.
  • July 31, 2017: The case is tentatively calendared for oral argument the week of October 2, 2017.
  • June 30, 2017: The DOL filed its reply brief. In its brief, the DOL asks the Fifth Circuit to reverse the decision of the lower court and "reaffirm the Department's statutory authority to establish a salary level test." However, the DOL also asks the Court not to address the validity of the specific salary level set by the 2016 overtime rule, "which the Department intends to revisit through new rulemaking."
  • April 19, 2017: The court granted the DOL's request to extend the time for its reply brief to June 30, 2017.
  • April 14, 2017: The DOL filed its third unopposed motion to extend the time for its reply brief. The request would extend the deadline to June 30, 2017.
  • February 22, 2017: The court granted the DOL's request to extend the time for its reply brief to May 1, 2017.
  • February 17, 2017: The DOL filed an unopposed motion to extend the time for its reply brief to May 1, 2017.
  • January 26, 2017: The court granted the DOL's request to extend the time for its reply brief to March 2, 2017.
  • January 25, 2017: The DOL filed an unopposed motion for a 30-day extension (to March 2, 2017) to file its reply brief. The DOL's motion provides that "[t]he requested extension is necessary to allow incoming leadership personnel adequate time to consider the issues."
  • January 24, 2017: The States of Colorado, Missouri, Montana, and Wyoming filed an amicus curiae brief in support of the Appellees.
  • January 24, 2017: Sixty business associations (including existing co-plaintiffs of the Appellees), filed an amicus curiae brief in support of the Appellees. The amici include national, state, and local associations.
  • January 17, 2017: The Appellees filed their response brief.
  • December 22, 2016: Twenty-six members of Congress, including Congressman Bobby Scott and Senators Patty Murray and Bernie Sanders, filed an amicus brief in support of the DOL's appeal.
  • December 15, 2016: The DOL filed its opening brief.
  • December 8, 2016: The court granted the DOL's request for expedited briefing as follows:
    • the DOL's opening brief is due December 16, 2016;
    • the Appellees' response brief is due January 17, 2017;
    • amicus briefs in support of the DOL are due December 23, 2016, and those in support of the Appellees are due January 24, 2017;
    • the DOL's reply brief is due January 31, 2017 (this date is significant because the Trump administration takes office January 20, 2017); and
    • oral argument is to be scheduled for the first available date after the close of briefing.
  • December 2, 2016: The DOL filed an opposed motion for expediting briefing and oral argument.
  • December 1, 2016: The DOL filed a notice of appeal with the Fifth Circuit (also the effective date of the final rule) (5th Cir. Docket No. 16-41606).

US District Court for the Eastern District of Texas

  • March 19, 2018: The court granted non-party Chipotle Mexican Grill, Inc.'s contempt motion against non-party Plaintiff Carmen Alvarez and her attorneys for pursuing an FLSA collective action based on the invalidated overtime rule. Alvarez sued Chipotle in the US District Court for the District of New Jersey for violation of the DOL's 2016 overtime rule six months after the Eastern District of Texas enjoined the rule. Chipotle then filed a contempt motion in the Eastern District of Texas. Judge Mazzant rejected the argument that the court's injunction only barred the DOL from enforcing the rule but did not bar enforcement of the final rule itself. (State of Nevada v. U.S. Dep't of Labor, (E.D. Tex. Mar. 19, 2018).)
    On May 1, 2018, the court granted a stay of the contempt order against non-party Plaintiff Alvarez, pending appeal to the Fifth Circuit. For more information on this case, see US Court of Appeals for the Fifth Circuit.
  • October 30, 2017: The DOL filed a notice of appeal from the court's permanent injunction (State of Nevada v. U.S. Dep't of Labor, No. 16-cv-00731, Docket Entry No. 119 (E.D. Tex. Oct. 30, 2017)).
  • August 31, 2017: The court issued a permanent injunction in favor of the more than 55 Texas and national business groups that challenged the DOL's overtime rule. Judge Mazzant explained that while a salary level test is not necessarily beyond the authority of the DOL, the agency may not implement a salary level test that effectively eliminates the duties test. By doing so, the DOL had "exceeded its authority and gone too far with the Final Rule."
    Judge Mazzant also concluded without further discussion that that portion of the DOL's rule providing for automatic adjustments to the minimum salary level every three years is unlawful for the same reason.
    In a separate opinion, the court denied the AFL-CIO's motion to intervene.
  • June 30, 2017: The DOL notified the district court of the filing of the agency's reply brief in the Fifth Circuit on June 30, 2017. The DOL's notice advises the district court that the agency will:
    • not advocate in the Fifth Circuit for the specific salary threshold ($913 per week) established in its 2016 overtime rule; and
    • engage in further rulemaking, including a request for information seeking public input, to determine what the salary level should be.
  • January 3, 2017: The court denied the DOL's motion to stay proceedings in the district court pending the agency's appeal to the Fifth Circuit (State of Nevada v. U.S. Dep't of Labor, (E.D. Tex. Jan. 3, 2017)).
  • December 12, 2016: The DOL moved to stay proceedings in the district court during the pendency of its appeal to the Fifth Circuit.
  • December 9, 2016: The Texas AFL-CIO moved to intervene as a defendant in the consolidated action, citing its concern that the DOL under the incoming Trump administration will not defend the agency's final rule. On December 12, 2016, the DOL notified the district court that the agency would take no position on the Texas AFL-CIO's motion, and on December 15, 2016, the coalition of business organizations opposed the motion.
  • November 22, 2016: The court issued a preliminary nationwide injunction enjoining the DOL's final rule (State of Nevada v. U.S. Dep't of Labor, (E.D. Tex. Nov. 22, 2016); see also Legal Update, DOL's Final Rule Increasing Minimum Salary for FLSA Exemption Enjoined Nationwide: E.D. Texas).
  • September 20, 2016: In separate federal lawsuits, 21 states and over 50 business organizations challenged the DOL's final rule. The complaints alleged that the DOL exceeded its authority and requested various declaratory and injunctive relief. (Plano Chamber of Commerce v. Perez, No. 16–cv–00732 (E.D. Tex. Sept. 20, 2016); State of Nevada v. U.S. Dep't of Labor, No. 16–cv–00731 (E.D. Tex. Sept. 20, 2016).) The two actions have been consolidated.