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Fifth Circuit Should Reverse Order Blocking Overtime Protections for Millions of Workers

 Representing 26 Members of Congress, Public Citizen Files Amicus Brief Supporting Stronger Overtime Protections

WASHINGTON - The U.S. Court of Appeals for the Fifth Circuit should reverse an order blocking overtime protections for millions of American workers, according to a brief submitted late Thursday by 26 members of Congress, represented by Public Citizen Litigation Group.

The brief (PDF) urges the Fifth Circuit to reverse a district court order barring the U.S. Department of Labor from implementing a regulation updating a test used to identify workers who are exempt from the minimum wage and overtime protections of the Fair Labor Standards Act (FLSA).

The members who submitted the brief include U.S. Rep. Bobby Scott (D-Va.), ranking member of the U.S. House of Representatives Committee on Education and the Workforce, and U.S. Sen. Patty Murray (D-Wash.), ranking member of the U.S. Senate Committee on Health, Education, Labor and Pensions.

The FLSA exempts from its minimum wage and overtime protections workers “employed in a bona fide executive, administrative, or professional capacity.” Since the Department of Labor first promulgated regulations on this exemption in 1938, it 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.

“The use of a salary level test is well supported, long-established, and helps ensure that workers receive fair wages,” said Adina Rosenbaum, the Public Citizen attorney representing the members. “The district court erred in finding that use of the test violates the FLSA.”

In May 2016, the Department of Labor updated the salary level needed to be exempt to $913 per week. Twenty-one states sued the Department, and the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction prohibiting the Department from implementing and enforcing the updated salary level test.

The Department of Labor appealed to the U.S. Court of Appeals for the Fifth Circuit, where the 26 members of Congress filed a friend of the court brief supporting the Department. The brief explains that the regulation is supported by the purpose and history of the FLSA, and Congress has long sanctioned the Department’s use, since 1938, of a salary level test to help distinguish exempt and non-exempt workers.

View the brief (PDF).


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Public Citizen is a national, nonprofit consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts.

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