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Phyllis Harden

Legislative & Special Projects, Pine Bluff Sand & Gravel
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Overtime Rule Appeal Delayed Again

May 17, 2017

The U.S. Department of Justice (DOJ) requested and was granted another delay to file a brief on behalf of the Department of Labor (DOL) in its federal court appeal on the Nov. 2016 Fair Labor Standards Act (FLSA) overtime regulation. The DOJ now has until June 30, 2017, to file its response.

This is the Trump administration’s third delay.  Previously, on Feb. 22, the U.S. Fifth Circuit Court of Appeals granted the DOJ’s second request to delay submitting its final brief for 60 days, citing a need to "allow incoming leadership personnel adequate time to consider the issues."

The additional time will allow Alex Acosta, the new U.S. Secretary of Labor, to decide the Trump administration's formal response and position on the Obama-era overtime regulation. On Jan. 25, days after the new administration took office, the government asked for and was given, an original extension of its appeal brief filing until March 2.

The regulation's implementation was halted by a Texas federal district court judge on Nov. 22. The then-Obama administration appealed the injunction shortly thereafter, but with a new Republican leader in the White House stating he does not support the rewritten overtime regulation, the rule's eventual implementation is now even more in doubt. It also leaves employers still uncertain about their work done last year to meet the original Dec. 1, 2016, compliance deadline to begin a $47,476 salary level threshold.

AGC appreciated the DOL’s attempt at modernizing the salary threshold for exempt workers under the FLSA, but urged regulators to reconsider the threshold amount and to instead implement a new lower threshold that made sense for today’s construction employers nationwide.  AGC looks forward to the opportunity to continue to engage in any further revisions to the regulation and looks forward to working with the Wage and Hour Division as it continues to amend regulations that impact construction employers.

For more AGC information on this rule, click here.

For more information, contact Claiborne Guy at 703-837-5382 or

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