The Department of Justice (DOJ) has abandoned its defense of the increased salary level in the 2016 overtime rule. The DOJ said in a brief on June 30 to the 5th U.S. Circuit Court of Appeal that the Department of Labor (DOL) intends to revisit the $47,476 per-year ($913 per-week) salary limit set by the rule through new rulemaking.

But the DOJ is appealing the portion of the November 2016 district court decision that said the DOL did not have the authority to set any salary-level threshold for the exemptions. It disagreed with the assertion from the 21 plaintiff states challenging the overtime rule that before 2016, the salary level was "set so low as to be inconsequential." The DOJ noted that an increase in 2004 led to 1.3 million white-collar workers who were exempt under the previous regulations gaining Fair Labor Standards Act (FLSA) protection, "a result that was not inconsequential."

Steven Suflas, an attorney with Ballard Spahr in Denver and Cherry Hill, N.J., said the DOL’s stance was no surprise. "As expected, the DOL informed the 5th Circuit that it was going to revisit the 2016 salary-level increases by way of new rulemaking. However, at the same time, the DOL now has defended its historical position that white-collar exemption requires a minimum salary level, in addition to the traditional job duties and salary-basis tests."

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