A group of labor organizations are attempting to save the new overtime rules from almost-certain death under the Trump administration.

The Texas AFL-CIO on December 9 moved to join a lawsuit challenging the rules, saying that if the president-elect drops the government’s defense of the regulation as predicted, the union group will see it through.

Background

The U.S. Department of Labor (DOL) issued new regulations earlier this year that would have required employers to pay overtime to anyone earning less than $913 per week (which amounts to $47,476 annually) beginning December 1.

A federal judge temporarily halted the rules just before they were scheduled to take effect. He called the regulation “unlawful” and said such actions should be left to Congress.

DOL quickly appealed the order and the 5th U.S. Circuit Court of Appeals agreed to expedite its review of the appeal. In its first brief, DOL argued that the lower court erred in questioning the lawfulness of the salary-basis test for overtime.

That regulatory construct has been in place for more than 75 years and has been accepted by every court to consider it, DOL said in its brief. The district court had no authority to disregard 5th Circuit and U.S. Supreme Court precedent, the department said (State of Nevada v. United States Department of Labor, No. 16-41606 (5th Cir. Dec. 15, 2016)).

And just days before filing that brief, DOL also asked the lower court to refrain from any further action until the 5th Circuit rules on the issue. The district court could, in the meantime, make its injunction permanent or rule on the plaintiffs’ summary judgment motion. But “[c]oncurrent proceedings in this Court and the Fifth Circuit on substantially similar claims would be inefficient and contrary to judicial economy,” DOL said (State of Nevada v. United States Department of Labor, No. 4:16-cv-731 (E.D. Texas, Dec. 12, 2016)).

What’s Next

Despite the expedited schedule, the 5th Circuit still isn’t scheduled to issue a ruling until after President-elect Donald Trump has taken office. Experts predicted that his administration will withdraw the appeal, and after he announced Andrew Puzder as his pick for Secretary of Labor, that seems even more likely, they said.

In a last-ditch effort to preserve the defense of the rule, the Texas AFL-CIO has asked the district court to allow it to join the suit. While DOL has represented the group’s interests so far, it said, that is unlikely to continue. “With the recent presidential election, and particularly as more information becomes available regarding the incoming Administration’s plans, policy, and appointments, the Texas AFL-CIO has grave concerns as to whether its interests in the Final Rule will be represented by the DOL,” it said.

“Puzder has strongly and publicly opposed the Final Rule,” it said, so “the Texas AFL-CIO is very concerned that the incoming administration will change course.”

The plaintiffs, however, argued that the organization’s speculation about the incoming administration’s views doesn’t justify granting its motion. “AFL-CIO proffers no legal basis warranting intervention now, solely based on speculation or concerns about whether the party that is adequately representing its interests now might change its position at some point in the future,” they said December 15, urging the court to deny the request.

The court has scheduled a conference for December 30.

For more information on how to handle the injunction, see Overtime Rule Injunction Leaves Risks in Every Direction and Overtime in Limbo—What Employers Should Do Now (Infographic).