The November 22, 2016, court order blocking implementation of the new federal overtime rule's higher salary level for the executive, administrative and professional (EAP) exemptions arguably does not apply to the rule's increased salary level for the highly compensated employee (HCE) exemption, some wage and hour attorneys say.

Steven Suflas, an attorney with Ballard Spahr in Denver, saw both sides of the argument. He noted that the complaint filed in the 21 states' lawsuit challenging the overtime rule specifically referenced the HCE exemption, reciting the effects of the new overtime rule on the HCE regulation. The U.S. Chamber of Commerce's lawsuit also mentioned the HCE exemption. (The states' and Chamber's lawsuits have been consolidated.)

Yet the November 22 decision did not mention the HCE exemption. "An argument can be made that the HCE exemption remains outside the scope of the court's injunction so the new rule remains partially in effect," he said.

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