The Department of Labor Monday sought to appeal a Texas judge’s decision to toss out an Obama-era rule that would have extended overtime pay by nearly doubling the FLSA’s salary threshold for exemption from overtime pay.

The agency filed its notice to appeal the decision to the U.S. Court of Appeals for the Fifth Circuit, and once docketed, the agency — through the Department of Justice — will file a motion to hold the appeal in abeyance while the DOL undertakes further rulemaking to determine what the salary level should be.

[Image Credit: Bloomberg]
[Image Credit: Bloomberg]

The agency is looking to keep its options open with regard to the rule, law firm Locke Lord’s Richard Glovsky, co-chair of the firm’s labor and employment practice group. “This is not surprising and makes sense from the DOL’s perspective,” he says. “This may help clarify, expedite and add order to a context which is currently unclear.”

While the appeal is held, the department continues to undertake further rulemaking, Glovsky adds.

A spokesperson with the agency said the DOL is currently reviewing submissions following a request for information it published earlier this summer asking for public input on what changes the DOL should propose.

During his confirmation hearing, DOL Secretary Alexander Acosta indicated the DOL will possibly revise the rule, acknowledging that overtime rules have not been updated since 2004 to reflect cost-of-living increases but also expressed concerns that doubling the salary level test would “stress” the economy.

In the meantime, Glovsky advises employers to keep an eye on the issues until it gets resolved.

“Otherwise, [employers] are playing Russian roulette with no particular insight how this is going to play out,” he says.

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