Bloomberg Law
April 10, 2023, 9:45 AM

Punching In: DOL Defends Its Authority to Regulate Overtime Pay

Rebecca Rainey
Rebecca Rainey
Chris Marr
Chris Marr
Staff Correspondent

Monday morning musings for workplace watchers.

Overtime Rule Litigation|Expanding Anti-Bias Laws

Rebecca Rainey: The Biden administration is defending a Trump-era overtime rule in federal court in an attempt to quash a lawsuit that threatens to undermine its plans to issue another regulation to expand overtime protections to more workers.

Although Democrats say that Trump-era update doesn’t go far enough to protect workers, in recent filings in the US District Court for the Western District of Texas, attorneys representing the Biden Department of Labor have requested a quick decision to uphold the rule.

Government attorneys argue that the Trump DOL was well within its authority to update the overtime test, as recognized by prior court rulings, and that Congress explicitly granted the agency the authority to “define and delimit” exemptions to overtime pay requirements.

A refresher: Under the Fair Labor Standards Act, workers are exempt from overtime pay if they meet a three-part test: they are salaried, make more than a certain amount per year, and work in a “bona fide executive, administrative, or professional capacity.” The Trump administration raised the salary threshold piece of that test—below which workers qualify for time-and-a-half overtime pay when they work over 40 hours in a week—to $35,568. The DOL also plans to make updates to the overtime exemption test this summer.

The legal fight: Robert Mayfield, a fast-food chain operator based in Austin, Texas, sued the DOL in August 2022 over the Trump rule, which has been in effect since 2020. In his request for summary judgment, he argued that Congress never delegated such broad authority to the DOL.

Mayfield’s attorneys say the FLSA “simply exempts” any employee who meets the job duties part of the test from overtime pay, regardless of how much they are paid. And if the language of the act “empowers the Secretary to dictate salary level requirements,” they argued in the filing, “it violates the nondelegation doctrine because the statute provides no direction as to whether (or how) the Secretary should develop salary level rules.”

In its latest filing in the case, the DOL noted that the agency has interpreted the overtime exemption to include a three-part test for over 80 years, including under Trump. The DOL also contends in response to Mayfield’s non-delegation claim that the FLSA provides an “intelligible principle limiting the Department’s discretion in effectuating the statute.”

What’s next?: Now that the case has been fully briefed, District Judge Robert Pitman will have to decide on both the DOL and Mayfield’s requests for summary judgment, or to move the case forward to trial. The Biden DOL plans to propose a regulation to further adjust the rules dictating when workers are owed overtime pay in May, according to the latest regulatory agenda.


Massachusetts enacted a law banning race-related hair bias in workplaces and public schools.
Photo by Anton Prokopenko/Getty Images

Chris Marr: State and local lawmakers have advanced proposals to tackle workplace discrimination based on age, weight, reproductive health decisions, and hair textures affiliated with race, amid the hundreds of labor and employment bills competing for attention in legislative sessions.

The measures advancing in state legislatures as well as the New York City Council propose to expand anti-discrimination laws in uncommon ways that go beyond federal law.

In Colorado, the House is considering a bill (SB 23-058) to prevent employers from asking job applicants for their age or age-identifying information, such as college graduation dates, on the initial job application. The Senate passed it last month.

The bill’s sponsors say the measure would give older job seekers a better chance for employers to consider them based on their merits and experience, rather than ruling them out at step one because of their age.

“Far too many older people experience discrimination when they are looking for a new job or looking to advance within their career,” state Sen. Jessie Danielson (D) said during Senate floor debate last month. “The first thing a prospective employer often sees is an age identifier, perhaps a graduation date, and that application is taken out of the running before the worker was ever truly considered.”

A Michigan bill (SB 147) to ban workplace discrimination against a person for having an abortion also won approval in the state Senate last month and awaits action in the House. Democrats there are advancing a broad agenda, including their recent repeal of the state’s “right to work” law and expansion of anti-bias law to include LGBTQ workers after winning narrow majorities in both chambers of the statehouse for the first time in decades.

Farther South, a version of the CROWN Act is advancing in the Texas legislature (HB 567), having won a House committee approval March 27. If enacted, the bill would give the movement to ban race-related hair discrimination by far its biggest win in a Republican-led state legislature. Similar laws have been enacted in 20 states, mostly by Democratic-majority legislatures with a handful of exceptions including Louisiana and Tennessee.

And the New York City Council could soon vote on a proposal (Int. 0209-2022) to ban bias based on height and weight, expanding a city human rights law that already goes well beyond federal law in protecting categories such as reproductive health choices as well partner, marital, and caregiver status.

Similar proposals to protect against weight-based discrimination are pending in the New Jersey and New York state legislatures, at the same time that a Texas lawsuit could result in a ruling that finds the state’s disability discrimination law covers and prohibits obesity bias.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.

To contact the reporters on this story: Rebecca Rainey in Washington at; Chris Marr in Atlanta at

To contact the editors responsible for this story: Genevieve Douglas at; Martha Mueller Neff at

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