Sen. Bernie Sanders, along with twenty-five other members of Congress, have filed an amicus brief in the Fifth Circuit Court of Appeals urging the Court to reverse the injunction issued by a Texas federal judge enjoining enforcement of the Department of Labor’s recent increase to the salary basis threshold for the white collar exemptions under the Fair Labor Standards Act (“FLSA”).  The amici stated that they “are committed to the right of American workers to receive fair pay for their work,” are “[w]orking to ensure that workers are provided fair wages,” and “have a strong interest in the proper interpretation and strong enforcement of the [FLSA].”  According to the amici, the “Department of Labor took a needed step toward ensuring that workers receive fair pay” and “strengthened overtime protections for millions of Americans by” increasing the salary basis threshold for the white collar exemptions.

In support of their position that the DOL did not exceed its authority by more than doubling the salary basis test, the amici argue that the concept of a salary level test as part of the white collar exemptions “is supported by the history and purpose of the FLSA and the bona fide [executive, administrative, and professional] exemption.”  The amici argue that “every iteration” of the DOL’s regulations defining the exemptions has included a salary level as a component of the exemption and that Congressional inaction since the salary level was imposed reflects agreement with a salary level test, particularly since Congress has amended the FLSA multiple times without removing the salary level test. The State Plaintiffs have explained, however, that inaction does not signal an agreement with the salary level requirement.  Rather, the salary level was never before set so high, so it did not previously exclude employees from coverage under the exemption even though their duties would qualify them for it, and there was no need for Congressional action.  The filing of the amicus brief by democratic members of Congress, coming after the announcement that President-elect Trump has named Pudzer as his nominee for Secretary of Labor, an outspoken critic of the overtime rule, injects further political theater regarding the appeal, which will be fully briefed by the end of January.