The first lawsuit, citing (among other things)
the severe impact the impending salary increase will have on state
and local government budgets, was filed by the Attorneys General of
Nevada, Texas, and 19 other states (the "State AG case").
The State AG case makes a Tenth Amendment-based challenge to
Congressional application of the FLSA to states. It also argues
that the DOL exceeded Congressional authority with respect to the
salary test, the highly-compensated employee exemption level, and
indexing. The State AG case also argues that the DOL failed to
follow the Administrative Procedure Act and/or that the Department
exceeded its Congressional delegation of authority.
The second lawsuit was filed by a broad
coalition of Texas and national business groups and trade
associations. This case alleges that the DOL exceeded its statutory
authority under the FLSA, both by the dramatic increase in the
minimum salary level required for exemption and by the provision
that would require automatic updating of that level every three
Both cases seek a variety of declarations regarding the
unlawfulness of the DOL's actions, as well as temporary and
permanent injunctive relief preventing the rule from becoming
effective on December 1, 2016.
The filing of these cases, as well as recent efforts in Congress to stop the rule (or
at least to revise it), may tempt some employers into
taking their foot off the pedal with respect to ensuring compliance
with the new salary level by December 1. As many have learned the
hard way, however, legislation and litigation are less-than-certain
Employers should continue their efforts to be compliant by
December 1. If we receive legislative or judicial relief at some
point, it will be much easier to stop the process than it would be
to start it much closer to the effective date. In other words,
Congressional or judicial relief should not be your compliance
We will, of course, continue to keep you updated on the
litigation and legislative efforts. In the meantime, keep your eyes
on the December 1 deadline.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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