United States: United States District Judge Issues Nationwide Injunction Forbidding The Implementation And Enforcement Of The DOL's Rule Increasing The Minimum Salary Level For Exempt Employees

In May 2016, a new rule published by the U.S. Department of Labor raised the salary level required for executive, administrative, and professional employees to be exempt from the FLSA's overtime requirements. The increase was substantial, from $455 to $913 per week (or from $23,660 per year to $47,476 per year). The rule was scheduled to take effect December 1, 2016. Employers scrambled to come into compliance, generally balancing whether, as a matter of math, it made more economic sense to reclassify previously exempt employees as hourly and absorb the administrative burdens of doing so (such as tracking previously untracked hours and trimming certain non-critical job duties) or to give these exempt employees a raise in pay. Yesterday, after all that effort and deliberation, employers were granted at least a temporary – perhaps a final – reprieve in the form of a preliminary injunction prohibiting enforcement of the DOL's new rule. While the injunction does mean that the rule will not go into effect on December 1, it is only preliminary and does not yet represent the final word on the matter. Employers should not yet discard or wholly abandon any planned changes. However, employers may delay their implementation of those changes and need not move forward with any salary increases or reclassifications on December 1, 2016. 

On November 22, 2016, United States District Judge Amos L. Mazzant, of the United States District Court for the Eastern District of Texas, issued a Memorandum Opinion and Order enjoining, nationwide, the implementation and enforcement of the Department of Labor's final rule published on May 23, 2016. That rule would have increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually) effective December 1, 2016. Below we provide information about this preliminary injunction and guidance for dealing with its ramifications.

Summary of the Preliminary Injunction Order

On May 23, 2016, the Department of Labor published the final version of its new rule, which increased the minimum salary level for employees exempt from the FLSA's minimum wage and overtime requirements under the exemption for employees in an executive, administrative, or professional capacity. In relevant part, the rule states "[w]hite collar employees subject to the salary level test earning less than $913 per week will not qualify for the EAP exemption, and therefore will be eligible for overtime, irrespective of their job duties and responsibilities." Under this final rule, effective December 1, 2016, the minimum salary level increased from $455 per week ($23,660 annually) to $921 per week ($47,892 annually). 

On October 12, 2016, twenty-one states filed a motion for an emergency preliminary injunction to stay implementation and enforcement of the DOL's "new overtime rule." The state plaintiffs argued the DOL's rule is unlawful and the DOL did not have authority to promulgate the rule. Following extensive briefing by the state plaintiffs and the DOL, the district court held a preliminary injunction hearing on November 16, 2016, and issued its Memorandum Opinion and Order granting the preliminary injunction on November 22, 2016.

In rejecting the DOL's defense of the rule's increased salary requirement, the district court determined "it is clear Congress intended the EAP exemption to apply to employees doing actual executive, administrative, and professional duties. In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level." (Nov. 22, 2016 Order, page 11) The court further concluded "Congress intended the EAP exemption to depend on an employee's duties rather than an employee's salary," but also specifically noted it was "evaluating only the salary-level test as amended under the Department's Final Rule" and "not making a general statement on the lawfulness of the salary-level test for the EAP exemption." (Id. at page 12)

The court determined the rule to be unlawful because, in promulgating the rule, the DOL "exceed[ed] its delegated authority and ignore[d] Congress's intent by raising the minimum salary level such that it supplants the duties test." (Id. at page 13). 

The court found the public interest would be best served by the entry of a preliminary injunction to "preserve[] the status quo while the Court determines the Department's authority to make the Final Rule as well as the Final Rule's validity." (Id. at pages 17-18) The court also agreed with the state plaintiffs that a nationwide injunction should be entered to "protect[] both employees and employers from being subject to different EAP exemptions based on location." (Id. at page 18)    

What Happens Now?

Following the court's granting of the preliminary injunction, the DOL issued this statement:

"We strongly disagree with the decision by the court, which has the effect of delaying a fair day's pay for a long day's work for millions of hardworking Americans. The department's overtime rule is the result of a comprehensive, inclusive rulemaking process, and we remain confident in the legality of all aspects of the rule. We are currently considering all of our legal options."

One legal option available to the DOL is to appeal the decision, and move to stay the injunction pending resolution of the appeal. A motion to stay would only be granted if the DOL can prove the appeal is likely to succeed on the merits. Another option would be to proceed with litigation in the district court to a final decision on the merits. 

Regardless of what the DOL ultimately chooses, the preliminary injunction means the DOL's new overtime rule will not be going into effect on December 1, 2016. We provide the following guidance to employers:

  • Continue to comply with the current DOL rules regarding the EAP exemption and minimum salary level requirement. Ensure that all employees that are classified as exempt meet the current salary basis requirements ($455 per week or $23,660 annually).
  • Delay (but do not entirely abandon) the implementation of any changes to the classification of employees or to the salary of employees that were motivated solely by the DOL's new overtime rule. However, be prepared that the rule could ultimately take effect and that those changes may need to be implemented at a later date.
  • Carefully evaluate the potential consequences of "taking back" or "undoing" any salary increases or other decisions that have already been made or communicated in anticipation of the DOL's rule going into effect on December 1, 2016.

As always, your Lewis Brisbois attorneys are available to assist you with any questions regarding the November 22, 2016 Memorandum Opinion and Order enjoining nationwide the implementation and enforcement of the DOL's new overtime rule.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.