December 10, 2019

Workers’ rights lawyers planning to sue the Trump administration over a new overtime pay rule may have to walk a legal tightrope: They want to challenge the regulation without harming more than a million employees who could see a pay bump thanks to the rule.

Unions and advocacy groups are throwing out the typical playbook, in which they sue ahead of time to block a regulation from going into effect. Instead, the plan is to wait for the new overtime regulation to hit the books, gauge how employers respond, and select plaintiffs and file a lawsuit, according to interviews with multiple attorneys involved in the plans.

The challenge is how to get a court decision that ultimately would allow the new overtime standard to be improved upon through the regulatory process, rather than eliminated outright. That includes finding the right plaintiffs and selecting the best court in which to challenge the rule.

“You find a Dollar General assistant manager who is working 60 to 70 hours a week and is being paid this relatively low salary, that’s a pretty good plaintiff to have,” said Michael Hancock, a former DOL official who now represents workers at plaintiff’s firm Cohen Milstein.

The legal strategy “needs to happen in a way that’s careful and thought-out and deliberate,” Hancock said. “I think you’re going to see people who are working diligently to find the right opportunity to challenge this, and once they do that I think you’re going to see lawsuits filed.”

The informal coalition seeking to strengthen overtime pay requirements, which the National Employment Law Project is spearheading, views the Trump administration’s regulation as a weakened version of an Obama-era rule that would’ve extended overtime wages to about three times more workers.

The final rule the Labor Department issued in September will set an annual salary threshold of $35,500 below which workers are entitled to overtime when they exceed 40 hours in a week. That will make some 1.3 million additional employees overtime eligible compared with the standard enforced today, with its $23,500 salary threshold that was last updated in 2004.

The lawsuit being planned would argue the rule is “arbitrary and capricious” under the Administrative Procedure Act, and should be rewritten to be more in line with the Obama Labor Department’s 2016 rule. That regulation would have set the threshold at $47,500, covering about 4 million more people than the currently enforced standard.

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Advocates from NELP and other organizations are reviewing prospective plaintiff candidates to find workers to present the most compelling examples of being wronged by the Trump Labor Department’s regulation.

To some lawyers who oppose the new rule, the ideal plaintiff would be someone who works long hours, including in non-managerial duties, and won’t qualify for time-and-a-half under the Trump administration’s rule but would’ve received overtime wages under the more expansive Obama-era proposal.

The full article can be accessed here.