DOL OT Rule Going Away? Don’t count your chickens… .


In a new development, 21 states and many business groups are requesting that the Texas court enjoin implementation of the new DOL overtime exemption rules.  As far as their chance of success, at least in the near term, it is not good.

Reports are that both cases have been assigned to Judge Amos Mazzant, who was nominated by President Barack Obama in 2014. It has been suggested that this assignment may not bode well for the plaintiffs.  Theoretically, prospects may improve if the lower court decision is taken up on appeal to the Fifth Circuit.

The states are claiming that the DOL overstepped by raising the salary level for what should be exempt duties–regardless of salary. Moreover, the plaintiffs allege that the automatic indexing that raises the threshold salary over three years is an overreach of authority and should include provisions for economic conditions or the effect on resources.

Our view is that we all stay the course, and continue compliance efforts. With the compliance date of December 1 so close, it would be risky to leave the fate your workplace with the courts. In the meantime we will closely monitor this case and if the courts stop implementation, that will be a wonderful surprise.

EMPLOYMENT LAW ALERT: Less than 3 months to comply with overtime rules

Why all the hype

  • The long-awaited and much-debated “White Collar” regulations issued on May 18, 2016, become effective December 1, 2016 – your compliance deadline.
  • The DOL has already set up field offices in every state and is conducting random audits. The fines associated with these audits are high. In addition to unpaid overtime, misclassification of employees can result in liquidated damages, equitable relief, and reimbursement of attorneys’ fees.
  • The risk is not limited to the FLSA. Each state has its own unique employment laws. Some of these laws are consistent with the FLSA, others are not. State agencies and Attorney Generals’ Offices also conduct audits and initiate lawsuits, compounding the risk to employers.
  • The new overtime regulations have given every employer the perfect opportunity to not only reclassify positions impacted by the new salary levels, but to correct positions that were improperly classified as exempt from the start. This is a unique and limited opportunity.

Do I need a lawyer?

  • In the event of a lawsuit, internal audits of exempt/non-exempt classifications can be used as evidence of a willful violation of the FLSA, which lengthens the statute of limitations from two to three years. The strongest protection is the careful use of the attorney-client privilege to protect the audit itself. Engaging human resources staff or consultants or even in-house counsel to conduct the audit will not allow the company to avail itself of the attorney-client privilege. By retaining outside counsel to perform this service, all findings are protected by Attorney-Client privilege.
  • This is an exceptional chance to obtain an indemnified legal opinion that all the jobs in your workplace are accurately classified as exempt or non-exempt, under both state and federal law.

We Get It!

  • That is why we developed our 2016 Positions Classification Service and charge a fixed/flat fee for that service.
  • Getting started is very easy.
  • We provide your team the forms, checklists and worksheets that will carefully guide you through the classification process.
  • We will review the forms, checklists and documents that you provide us to insure exempt positions comply with state and federal law.
  • You can relax knowing that you have well-written job descriptions and that each employee is correctly classified and being compensated under the pertinent state and federal laws.

Introducing Our Service:

Introducing Our New Lawyer

Speaking of help, we are very proud and excited to introduce Attorney Julie Fletcher to our practice. Prior to joining Foley & Foley, Julie worked in the areas of immigration and employment law for several years at national law firms in Boston. Check out her bio.

Closing Thoughts

The United States Department of Labor has been on a roll, impacting wages, job classifications, the FMLA and Affirmative Action Compliance for Federal Contractors, just to name a few of their recent initiatives.

Please let us know how we can help your team better manage employment law compliance and HR-related risk.

CONTACT US 508-548-4888 or

We can help.