On April 28, 2017, the U.S. Senate voted 60-38 to approve Alex Acosta as the new Secretary of Labor of the U.S. Department of Labor. Secretary Acosta is currently serving as the Dean of the Florida International University College of Law and previously served as a member of the National Labor Relations Board and head of the U.S. Department of Justice Civil Rights Division. President Trump originally nominated Andrew Puzder for the position. In February, Mr. Puzder withdrew his name from nomination.
Secretary Acosta is now facing a number of important issues. A high priority will almost certainly be how to proceed on the appeal of a nationwide preliminary injunction temporarily precluding the Overtime Final Rule from taking effect. The case is now pending before the 5th Circuit Court of Appeals. As discussed in a prior employer alert, in 2016, the U.S. Department of Labor issued a Final Rule increasing the minimum salary level for employees otherwise exempt from the overtime pay requirements of the Fair Labor Standards Act from $23,660 per year to $47,476 per year. The rule modifying the “salary level test” was to become effective December 1, 2016. The DOL has been granted three extensions of time by the 5th Circuit Court of Appeals to file its brief in the pending case. The final brief is now due to be filed by June 30, 2017.
Commentators suggest that Secretary Acosta will not choose to keep the minimum salary level at $47,476 per year, which would mean that the DOL will dismiss its appeal and start the process all over again. Another possible scenario is that Secretary Acosta will propose a minimum salary level somewhere between the current level of $23,660 per year and the proposed $47,476 per year.
The firm will continue to monitor this important issue and provide updates on significant developments.