The NCSL Blog


By Lisa Soronen

States may now ignore the looming Dec. 1 deadline to comply with the new overtime rules.

supreme court buildingA Texas federal district court issued a nationwide injunction preventing new overtime rules from going into effect. These rules would have made it more likely states and local governments would have had to pay more employees overtime. Twenty-one states and a number of business organizations sued the U.S. Department of Labor (DOL).

Under the Fair Labor Standards Act (FLSA), executive, administrative and professional “white collar” employees do not have to be paid overtime if they work more than 40 hours a week. Under DOL regulations, adopted shortly after the FLSA was adopted in 1938, employees must perform specific duties and earn a certain salary to be exempt from overtime as white collar employees.

Last May, the DOL issued final rules nearly doubling the previous salary level test for white collar employees from $455 per week, or $23,660 per year to $913 per week, or $47,476 per year.

DOL also raised the salary threshold for highly compensated employees—who aren’t eligible for overtime no matter their job duties—from $100,000 per year to $134,004 per year. The rules automatically update the salary level every three years for white collar and highly compensated employees.   

As a practical matter, states objected to these rules because they would cost more money and states “cannot reasonably rely upon a corresponding increase in revenue, [so] they will have to reduce or eliminate some essential government services and functions.”

The court issued a preliminary injunction in this case because in exempting executive, administrative and professional employees from overtime Congress didn’t include a salary test. According to the court, “If Congress intended the salary requirement to supplant the duties test, then Congress, not the department, should make that change.” It is surprising that the court seemed to imply that DOL could impose no salary test at all, though it has been doing so since the 1930s. (In a footnote, the court said it was only evaluating the salary test in the 2016 final rule).

The court also concluded DOL lacks the authority to automatically update the salary level.

The states asked the Texas district court to overturn Garcia v. San Antonio Metropolitan Transit Authority (1985), where the U.S. Supreme Court held that the FLSA applies to the states. Unsurprisingly, the court refused as only the Supreme Court may overturn its precedent. But the Texas court did note that the states made a persuasive argument. Garcia may have been implicitly overruled.

DOL may appeal this ruling to the 5th U.S. Circuit Court of Appeals. After taking office, however, President-elect Donald J. Trump could instruct DOL not to continue defending the lawsuit. 

Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor on legal issues to the NCSL Blog.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.