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U.S. Department of Labor overtime rule litigation update

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As we have previously informed the readers of this column, the U.S. Department of Labor immediately appealed the nationwide injunction to stop the implementation of the agency's final overtime rule. That appeal was filed with the U.S. Court of Appeals for the Fifth Circuit.

In the original briefing schedule, briefing was to be completed on Jan. 31, 2017. Prior to that date, the Department of Labor had filed a motion to extend by 30 days the due date for its reply brief – until March 2. The court granted that motion.

On Feb. 17, the Department of Labor filed another motion to extend by an additional 60 days the time for filing its reply brief. The Department of Labor's reason for requesting the second extension was to "allow incoming leadership personal adequate time to consider the issues ..."

On Feb. 22, the court granted the Department of Labor's motion, making May 1 the new due date for the reply brief. This is very good news. By May 1, there will certainly be a new secretary of labor, who will then have the authority to stop or withdraw the appeal and accept the decision of the lower court. Let us hope that happens.

Using its authority under the Congressional Review Act, there is still a second possibility that Congress could pass a resolution disapproving of the rule. The bill would then go to President Trump for signature, which he certainly would do. This is yet another track for stopping the overtime rule.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

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