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Alex Acosta confirmed as 27th U.S. Secretary of Labor

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On April 27, by a 60 to 38 vote, the U.S. Senate confirmed Alex Acosta as the nation's 27th secretary of labor. He was then sworn in by Vice President Mike Pence on April 28. Acosta is highly qualified for this position, having served on the National Labor Relations Board and worked as an assistant attorney general and U.S. attorney for the Southern District of Florida.

Now that that Acosta has been confirmed, he will first determine whether the U.S. Department of Labor will continue its appeal of the Overtime Rule, which is currently enjoined nationwide.

As previously reported, the Overtime Rule injunction was promptly appealed by Thomas Perez, President Obama's secretary of labor. Briefing of the issue was originally to be completed by Jan. 31 – 11 days after the inauguration of President Donald Trump. Prior to that date, the Department of Labor had filed a motion to extend by 30 days the due date for its reply brief – i.e., 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, next making May 1 the new due date for the reply brief – well after Acosta was originally expected to be confirmed.

When Acosta had not yet been confirmed by mid-April, the Department of Labor filed on April 14 an unopposed motion for a third extension of the briefing schedule. On April 19, the additional 60-day extension was granted, making June 30 the new due date for the reply brief. With Acosta now confirmed, this should be the final due date.

In Acosta's confirmation hearing before the Senate Health, Education, Labor and Pensions Committee, he discussed his thoughts about the Overtime Rule – questioning the legality of even enacting a new salary threshold and noting that the currently enjoined rule goes way too far.

Acosta plans to consult with the Department of Justice to determine whether the DOL has the authority to enact a salary increase in the first place. Referencing the current statute's duties test that determines overtime exemption, Acosta asked, "Does a dollar threshold supersede a duties test, and as a result, is it not in accordance with the law?"

If the rule were to be revised, Acosta believes the currently proposed $47,476 salary threshold would create a "stress on the system." Accounting for inflation since the dollar amount was last adjusted in 2004, Acosta stated that he believes the correct salary threshold figure should be "somewhere around $33,000."

Let us hope that Acosta decides to abandon the U.S. Department of Labor's Overtime Rule once and for all!

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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