In the latest round in the litigation between 21 States, led by the State of Nevada, and the Department of Labor regarding the Final Rule, the State Plaintiffs filed their appeal brief today with the Fifth Circuit, urging the Court to affirm the district court’s order, which issued a nationwide injunction blocking the rule.  “As the District Court held, and the United States Supreme Court precedent confirms, the terms in Section 213(a)(1) are defined functionally and cannot be swept aside by a rule that imposes a cutoff based on salary alone,” the States argued.  The State Plaintiffs explained the salary level requirement has been controversial from the date the requirement was imposed (contrary to the DOL’s assertion), but that it was set so low that there was no incentive to challenge it.  The Final Rule, however, changes that, as it will result in millions of workers no longer being covered by the exemption, even though their duties would otherwise qualify for the exemption. “[T]he DOL is openly transforming the salary threshold into a de facto minimum wage mechanism that deliberately excludes many bona fide EAP employees from an overtime exemption,” the State Plaintiffs said.  

The case should be full briefed by the end of the month and oral argument will likely be scheduled in February.  The State Plaintiffs have asked for additional time for oral argument (30 minutes each side) in light of the complexity and importance of the issue.  The oral argument before the district court lasted 3.5 hours.