As we all know, a federal judge blocked the Final Rule from the Department of Labor (“DOL”) that would have roughly doubled the salary threshold for executive, administrative and professional exempt employees.  Now, the DOL has filed its appellate brief, looking to overturn that injunction.

The DOL’s arguments are predictable.  Although the judge said he was only blocking the new salary threshold, not blocking all use of a salary threshold test, the DOL brief argues that judge’s reasoning would apply to any salary threshold test; but, both the appellate court and the Supreme Court have approved the use of salary threshold tests in the past.  In addition, the DOL brief argues that the Final Rule did not merely add context to ambiguous terms in a statute; instead the DOL was exercising authority explicitly granted under the FLSA.  The salary threshold test is neither arbitrary, capricious, nor manifestly contrary to law.

We knew the DOL would turn this brief around quickly, but barring a miracle, the new administration will take office before the appellate court reaches a decision in the case. Of course, ‘tis the season for divine intervention.