As you have all heard by now, a federal judge in Texas has issued a nationwide preliminary injunction prohibiting the Department of Labor ("DOL") from enforcing their new rules regarding the executive, administrative and professional exemptions under the Fair Labor Standards Act ("FLSA").  The next question is:  "So where do employers go from here?"

 

While the preliminary injunction currently prohibits the DOL from enforcing their new FLSA rule on December 1, 2016, litigation of the matter is not final.  There is always the possibility the injunction is reversed by the judge upon further review, or overturned on appeal by the Fifth Circuit Court of Appeals or the U.S. Supreme Court.  If the injunction is subsequently overturned, one major question facing employers will be whether the new FLSA rule with take effect (9) on the date of the injunction is reversed, or (2) retroactively to December 1, 2016.

 

Unfortunately, there is no clear answer to this question because courts across the country have reached different conclusions in determining what should be the effective date of a DOL rule for which a court issues a preliminary injunction that is later reversed.  In other words, some courts have ruled that the effective date should be the date the injunction is reversed, while others have found that the rule should take effect as its original effective date.  Compare Flamer v. Maxim Healthcare Svcs., Inc., No. 1:15-CV-02070 (D. Md. Oct. 26, 2015)(injunction delayed effective date of rule) and Bangoy v. Total Homecare Solutions, No. 1:15-CV-573 (S.D. Ohio Dec. 21, 2015)(injunction rendered rule null and unenforceable) with Kinkhead v. Humana Inc, No: 3-15-CV-01637 (D. Conn. Oct. 13, 2016)(rule effective on date set forth by the agency) and  Lewis-Ramsey v. Evangelical Lutheran Good Samaritan Society, No. 3:15-CV-00026 (S.D. Iowa Sept. 21, 2016)(rule effective on original effective date). 

 

The Hawaii Employers Council has created a quick (and informal) poll to help employers learn about what other companies are doing now that a preliminary injunction has been implemented against the new FLSA rule, especially in situations where changes have already been implemented or announced.