[co-author: Eric Magnus, principal]

On December 2, one day after filing its appeal of the preliminary injunction blocking its new salary basis regulations, the DOL filed a request for expedited briefing and oral argument in the appeal.  The DOL has requested that the Fifth Circuit Court of Appeals set an expedited schedule whereby briefing would be complete on February 7, 2017 and oral argument would occur on the first available date thereafter.  According to the DOL, the injunction was issued in error because the Fair Labor Standards Act gives the DOL “broad latitude” to issue regulations defining and delimiting the white collar exemptions, including the salary basis test.  The DOL also notes in its request that the district court below set an expedited schedule for considering the motion for preliminary injunction.  The States who initially filed the lawsuit challenging the DOL salary basis regulations have indicated that they oppose the DOL’s request for expedited briefing and oral argument.  The Fifth Circuit may not grant the DOL’s request for an expedited schedule, but even if it does the appeal would not be resolved by the January 20, 2017 inauguration of President-elect Trump even under the DOL’s proposed schedule.  Under the Trump Administration, the DOL could withdraw the appeal or issue new proposed rules.  Congress could also pass new legislation nullifying the DOL regulation.