Texas FlagSince my last update on October 25, 2016 regarding the coalition of states and businesses suing the U.S. Department of Labor over the new overtime regulations, the parties have been busy and the Court has issued a few orders. Given the results of the recent elections (and the uncertainty of what will become of the new regulations with the new administration), for now, all eyes are on Judge Mazzant and the Eastern District of Texas. Here’s what has happening with the two cases:

October 31, 2016 – DOL’s Motion To Stay Summary Judgment Denied

On October 31, 2016, Judge Mazzant denied the DOL’s motion to stay summary judgment (the expedited motion filed by the Business Plaintiffs), but granted its motion to extend time to respond to November 18, 2016.  The Business Plaintiffs’ reply is due November 21, 2016. Judge Mazzant will hear the motion on November 28, “if necessary” (meaning, if he can’t decide on the documents, which I suspect he will given the anticipated very thorough briefing that will be done). In addition, the Court held that it will consider the Business Plaintiffs’ summary judgment brief as an amicus brief in support of the States’ motion for a preliminary injunction. In other words, the Court will consider the arguments of the Business Plaintiffs in the States Plaintiffs’ motion, and allow them to be heard at that hearing. The DOL has until November 7 to respond to that amicus brief.

November 7, 2016 – DOL Files Response to Business Plaintiffs’ Amicus Brief

On November 7, 2016, the Defendant DOL filed “Defendants’ Memorandum of Law In Response to Position of the Business Plaintiffs Treated as Amici With Regard to the State Plaintiffs’ Motion for Preliminary Injunction pursuant to Order of October 31, 2016”. In English – on October 31, Judge Mazzant said he would consider the relevant portions of the Business Plaintiffs’ summary judgment brief in the States’ case.  This is often done at the U.S. Supreme Court level, and other instances where there is a lot at stake and the judge desires to have the benefit of all the positions and learned minds.  This brief is the DOL’s response to the Business Plaintiffs’ position.

November 10, 2016 – Plaintiff States Filed Their Reply Brief

Finally, the last document filed in this case to date, on November 10, 2016, the States replied to the DOL’s response to their emergency motion for preliminary injunction. In short, the States argue the DOL’s entire argument surrounds “ambiguity” made without “specific Congressional authorization.” Further, the States argue that the DOL has basically preempted the duties test and making it a “salary only” test, ignoring 75 years of the prevailing duties test. Should they lose, the States argue they will suffer irreparable harm – to the tune of $115.1 million the first year in increased state and local costs, as conceded by the DOL in its response brief. Accordingly, the Plaintiff States request the preliminary injunction be granted.

Stay tuned – the saga will continue!