Bricker:
The DoL rule will automatically update the standard salary and compensation levels annually, either by a fixed percentage or by updating the amounts based on changes in the Consumer Price Index for All Urban Consumers (the “CPI-U”), an approach which violates the Administrative Procedures Act rule-making requirements.
Every three years, if I read the fact sheet correctly.
Bricker
November 16, 2016, 2:33am
62
Yes, and the plaintiffs argue that this automatic rule also violates the APA.
Thanks guys, I was having trouble getting to sleep. Wow. I didn’t know a philodendron could snore!
Bricker:
The proposed nationwide standard failed to account for regional and State variations in salaries and economic vibrancy, nothwithstanding the DoL claim that such a level would “accomplish the goal of setting a salary threshold that adequately distinguishes between employees who may meet the duties requirements of the EAP exemption and those who likely do not….” In other words, the new standard does not actually bear a sufficient tie to a real determination of whether the people covered are actually executive, administrative, or professional; there is no reason that the 40th percentile of all full-time salaried employees nationally has any relationship to whether those employees are EAP.
The regulation covers state employees, which runs afoul of general federalism concerns.
The DoL rule will automatically update the standard salary and compensation levels annually, either by a fixed percentage or by updating the amounts based on changes in the Consumer Price Index for All Urban Consumers (the “CPI-U”), an approach which violates the Administrative Procedures Act rule-making requirements.
Your first point may be true, but that’s a flaw of the FLSA itself, not the rule. Nothing in the FLSA gives the DOL authority to set different standards for different states or regions - except for American Samoa.
The FLSA overtime provisions have covered state employees since 1961, and there is no unsettled constitutional question there. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
Ultimately, it looks like the Maine lawsuit is actually a challenge to applicability of FLSA to states , with the rule issues being something akin to window dressing.
Really_Not_All_That_Bright:
The FLSA overtime provisions have covered state employees since 1961, and there is no unsettled constitutional question there. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
Ultimately, it looks like the Maine lawsuit is actually a challenge to applicability of FLSA to states , with the rule issues being something akin to window dressing.
Please clarify. If the red bolded statement above is correct, it suggests that the green bolded statement is a slam-dunk to fail.
Or a test of whether the change in the Court’s composition since 1985 results in a different outcome.
Bricker
November 23, 2016, 2:37pm
67
Really_Not_All_That_Bright:
Your first point may be true, but that’s a flaw of the FLSA itself, not the rule. Nothing in the FLSA gives the DOL authority to set different standards for different states or regions - except for American Samoa.
The FLSA overtime provisions have covered state employees since 1961, and there is no unsettled constitutional question there. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
Ultimately, it looks like the Maine lawsuit is actually a challenge to applicability of FLSA to states , with the rule issues being something akin to window dressing.
An update, says the district court judge:
After reading the plain meanings together with the statute, 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. The statute’s use of “bona fide” also confirms Congress’s intent. “Bona fide” modifies the terms “executive, administrative, and professional capacity.” The Oxford English Dictionary defines “bona fide” as “*n good faith, with sincerity; genuinely.” Bona fide, 1 The Oxford English Dictionary (1st ed. 1933). The plain meaning of “bona fide” and its placement in the statute indicate Congress in ended the EAP exemption to apply based upon the tasks an employee actually performs. Therefore, Congress unambiguously expressed its intent for employees doing “bona fide executive, administrative, and professional capacity” duties to be exempt from overtime.
This in the context of granting a preliminary injunction based upon, inter alia, substantial likelihood of success on the merits.
The judge in question is Amos Mazzant, an Obama appointee, in case anyone believes this relevant. No word on how much of my commentary above influenced Judge Mazzant’s decision, but in my opinion the man owes me at least a footnote.
It’s a thankless job, is mine.