The Trump administration on Wednesday indicated it would kill any chance of reviving former President Obama's expansion of federal overtime pay rules, with a court filing suggesting that it may withdraw a White House appeal of a federal court's invalidation of the rule.
"The federal government respectfully requests a 30-day extension of time, to and including March 2, 2017, in which to file its reply brief. The requested extension is necessary to allow incoming leadership personnel adequate time to consider the issues," the Justice Department said in filing with the 5th Circuit Court of Appeals.
It is highly unlikely the administration will support the rule. Trump's pick to head the Labor Department, fast-food businessman Andrew Puzder, has been highly critical of the Obama administration's effort.
"As with the Obama administration's other efforts to regulate their way to economic prosperity, it will not deliver as promised. ... Turning highly sought-after entry level management careers into hourly jobs where employees punch a clock and are compensated for time spent rather than time well spent is hardly an improvement on the path from the working class to the middle class," Puzder said in May op-ed for Forbes.
Federal law says employees must be paid time-and-a-half once they work more than 40 hours in a week. However, businesses may exempt workers from the requirement if their duties are "managerial" in nature and they reach a certain salary threshold.
In May, the Labor Department announced that the threshold, previously $23,000 annually, would rise to more than $47,000 on Dec. 1 and would be updated every three years to reflect wage growth. The administration's rule change would have meant that 4 million more workers would be eligible for overtime.
The administration said it was merely updating the Fair Labor Standards Act to reflect current employment policies. Business groups and several states opposed the rule, saying it set the threshold too high, making it impossible for employers and employees to set flexible work schedules.
In November a federal judge threw out the rule, saying the administration had overstepped its authority and only Congress could make such a sweeping change to the law.
The White House appealed the ruling in December, but by then the Obama administration had only weeks left in its tenure. Despite requesting an expedited hearing, it ran out of time before the court could act.
The new administration still has hoops to jump through before the rule can be irrevocably killed, said Diana Furchgott-Roth, senior fellow at the Manhattan Institute and a member of the Trump administration's transition team on labor policy.
"In order to properly get rid of the overtime rule, the administration has to request that the 5th Circuit drop the appeal of the prior administration. Then, it needs to clean up matters by proposing to rescind the overtime regulation and publishing a final rule rescinding it," Furchgott-Roth said.