FLSA Hail Mary?

By John Alan Doran

We have heard an extraordinary amount of commentary about the impending December 1, 2016 deadline for compliance with the new FLSA overtime regulations. One of the most troubling comments that appears to be gaining inexplicable traction is the assertion that employers should hold off on readying themselves for implementation of the regs for the time being. This suggestion appears to be the product of two federal lawsuits (Case 1 and Case 2) challenging the DOL’s enactment of the regs. The employers in both of these cases have sought “expedited” relief—one in the form of accelerated summary judgment and one in the form of emergency injunctive relief. In other words, both cases seek to stop these regs in their tracks at least in the short term. But somehow the pendency of these lawsuits has been spun or misunderstood to suggest that the regs are all but history. Not so. It is far too early to predict even short-term outcomes in these cases. And the analysis, planning, and implementation of systems necessary to comply with the regs cannot occur overnight for any employer. So, hoping that one or both of these cases will deliver to employers a deus ex machina before December 1 is fine. But doing nothing to bring your workplace into compliance so that you are good to go on December 1 should these lawsuits not accomplished what we hope as quickly as we hope is simply the opposite of fine. Boston College taking down Miami was decidedly different from convincing a federal judge over the course of a few weeks to immediately halt the DOL’s implementation of regulations that are the product of notice-and-comment rulemaking.