The Fair Labor Standards Act (FLSA) exempts from its minimum wage and overtime protections workers “employed in a bona fide executive, administrative, or professional capacity,” 29 U.S.C. § 213(a)(1). Since the Department of Labor first promulgated regulations on this exemption in 1938, the Department has used a salary level test to help define the scope of the exemption. Employees who earn less than the salary set by the Department are not exempt.
In May 2016, the Department of Labor issued a regulation updating the salary level needed to be exempt to $913/week. Twenty-one states sued the Department, and the United States District Court for the Eastern District of Texas issued a nation-wide preliminary injunction prohibiting the Department from implementing and enforcing the updated salary level test.
The Department of Labor appealed to the Fifth Circuit, where Public Citizen filed an amicus brief in support of the Department, on behalf of 26 members of Congress, including Representative Bobby Scott, ranking member of the House Committee on Education and the Workforce, and Senator Patty Murray, ranking member of the Senate Committee on Health, Education, Labor and Pensions. The brief explains that the regulation is supported by the purpose and history of the FLSA, and that Congress has long sanctioned the Department’s use, since 1938, of a salary level test to help distinguish exempt and non-exempt workers.
While the appeal was pending, the district court granted summary judgment to the plaintiffs, and the Department then dismissed the appeal of the order granting a preliminary injunction.