Congress May Use Review Act to Nullify Overtime Rule

Expedited review of overtime decision granted

By Allen Smith, J.D. Dec 9, 2016
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Congressional Republicans plan for the House of Representatives to adjourn early for the year so they can buy time—until President-elect Donald Trump takes office—to try to override the new overtime regulations.

The Congressional Review Act (CRA) empowers Congress to revoke new regulations. Under the CRA, if 60 legislative days haven't expired by the end of the year since a rule was presented to Congress, Congress gets another 45 days in the new legislative session to revoke the new regulations, said Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C. If Congress passes a resolution disapproving regulations within the permitted window of time and the president signs the resolution, the regulations are killed.

FLSA overtime rule resources
FLSA Overtime Rule Compliance

For more overtime compliance news, tips and tools, check out the SHRM resources provided below:

· FLSA Overtime Rule Resources Guide
· Overtime Rule Blocked: Now What?
· Compliance Checklist · Infographic

It is widely anticipated that Congress will adjourn at the end of this week, noted Carol Barnett, an attorney with Polsinelli in St. Joseph, Mo. "This would then satisfy the timing for the CRA to come into play for the 115th Congress to override the Obama administration's overtime regulations, should Congress see fit to do that."

Meanwhile, in separate action in the courts, states challenging the overtime rule said that the Department of Labor's (DOL's) motion for expedited review of its appeal of a court order blocking the overtime rule should be denied. But the 5th U.S. Circuit Court of Appeals rejected this argument, granting expedited review of the appeal Dec. 8. Regardless, resolution of the appeal is unlikely to happen before Inauguration Day on Jan. 20.

CRA

The CRA is rarely used, but President George W. Bush signed a disapproving resolution on ergonomics regulations in 2001.

The 60-day clock can restart and give Congress 45 days in the new year if either the Senate or the House of Representatives adjourns by Dec. 9, which the House is expected to do, explained Brett Coburn, an attorney with Alston & Bird in Atlanta.

One problem with the CRA is that it prohibits substantially similar regulations from being issued, Robinson noted. So if a disapproving resolution of the overtime rule was signed into law next year, it's not clear whether the DOL could raise the exempt salary level in subsequent rulemaking. Even the overtime rule's opponents favor increasing the salary level from $23,660 per year—just not so much so fast. (The overtime rule more than doubled the salary level to $47,476.)

Congress has other options, he said, such as passing a law nullifying the rule (as opposed to a disapproving resolution) or letting the Trump administration withdraw the appeal of the preliminary injunction.

Motion for Expedited Review Opposed, but Granted

As for where things stand with the judicial challenge of the overtime rule, Nevada and Texas led 21 states in the lawsuit seeking to prevent the overtime rule from taking effect, which resulted in a district court granting a preliminary injunction on Nov. 22.

Although the DOL has successfully sought expedited review, it's hard to understand what the big hurry is to review the order because the overtime rule's planned effective date of Dec. 1 has already passed, said Brett Bartlett, an attorney with Seyfarth Shaw in Atlanta.

[SHRM members-only toolkit: Calculating Overtime Pay in the United States]

In a motion opposing expedited review, the states said Dec. 5 that the business plaintiffs' motion for summary judgment before the district court could be decided "any day," which would make the preliminary injunction appeal irrelevant. The DOL then would have to appeal the summary judgment. In addition to the states' lawsuit challenging the overtime rule, the U.S. Chamber of Commerce and other business groups sued the DOL over the rule; the states' and business groups' lawsuits were consolidated in October.

Responding on behalf of the DOL, the Department of Justice (DOJ) said Dec. 6 that the government's preliminary injunction appeal might be consolidated with its appeal from a final judgment, such as summary judgment. "That approach is particularly efficient when, as here, the legal basis for the grant of a preliminary injunction would likely provide the basis for the summary-judgment order as well," the DOJ said

The 5th Circuit found the DOJ's argument to be persuasive, granting the motion to expedite the appeal as follows:

  • The DOL's opening brief is due Dec. 16.
  • The briefs of supporters of the DOL are due Dec. 23.
  • The states' brief is due Jan. 17.
  • The briefs of supporters of the states are due Jan. 24.
  • The DOL's reply brief is due Jan. 31.

But Bartlett said, "It's a smart move by the business plaintiffs and presumably the [attorneys general] to coordinate their offensive by trying to convince [District Court] Judge [Amos] Mazzant to rule quickly on the summary-judgment motion. If he does, it will complicate matters at the very least. And any complications are more likely to stall further efforts to overturn the judge's ruling well into the first days of the new administration."

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