Is the DOL’s white-collar salary test DOA?

Late last week, a federal judge in Texas struck down the Department of Labor’s attempt to raise the salary test for the Fair Labor Standards Act’s white-collar exemptions from $455 per week to $913 per week.

The court held that because the statute defines the administrative, executive, and professional exemptions based on their duties, any salary test that renders the duties irrelevant to the analysis is invalid. Thus, because the Obama-era $913 salary test could overshadow the exemption’s duties in the execution of the exemptions, the new salary level is invalid.

I founds footnotes 5 and 6 to be very interesting, but I’m not sure the position they advance are intellectually consistent with the bulk of the opinion.

Compare:

This opinion is not making any assessments regarding the general lawfulness of the salary-level test or the Department’s authority to implement such a test. Instead, the Court is evaluating only the salary-level test as amended by the Department’s Final Rule. ... During questioning at the preliminary injunction hearing, the Court suggested it would be permissible if the Department adjusted the 2004 salary level for inflation. [fns. 5 and 6]

-vs-

The Final Rule more than doubles the previous minimum salary level. By raising the salary level in this manner, the Department effectively eliminates a consideration of whether an employee performs “bona fide executive, administrative, or professional capacity” duties. ... Nothing in Section 213(a)(1) allows the Department to make salary rather than an employee’s duties determinative of whether a “bona fide executive, administrative, or professional capacity” employee should be exempt from overtime pay. [opinion]

To me, the only way to read the opinion is that any salary test exceeds the DOL’s authority to implement the EAP exemptions (fns. 5 and 6 notwithstanding). Alternatively, if the only salary test that will pass muster is one that is so low that anyone who meets the duties test also must, de facto, meet the minimum salary threshold (the status quo of $455, adjusted for inflation to $592), why have a salary test at all?

Thus, in the opinion of this blogger, the DOL’s salary test is DOA. Now, let’s wait for the appeal and see what the court of appeals has to say on this issue.

WIRTW #474 (the “I’m from” edition)

My 11 year old daughter is a unique soul. She’s always been older and wiser than her years suggest, but I don’t think I’ve ever appreciated exactly how much older or wiser until I read her “I’m from” poem.

She just entered 6th grade, and this poem was her first ever middle-school assignment. This year's language arts curriculum is focused around the idea of identity. Her assignment was to craft a poem defining her own personal identity—where she’s from.

The result floored me. I cried real tears. Not just out of joy that my 11-year-old could produce something of such beauty, but that this beauty reflects a deep understanding of who she is.

So perfectly Norah.

Here’s what else I read this week.

BREAKING: federal judge strikes down FLSA white-collar exemption salary test

Ding, dong, the DOL’s salary test for white collar exemptions is dead (sort of).

A Texas federal judge has held that the Department of Labor improperly used a salary-level test to determine which white-collar workers are exempt from overtime compensation.

That time Justin Bieber’s “L’il Biebers” caused a sex discrimination lawsuit

File this one under the category of I can’t make this stuff up. Apparently, Justin Bieber’s testicles are at the center of a recently filed sex discrimination lawsuit.

The 17th nominee for the “worst employer of 2017” is … the square non-sparer

A female public relations exec is suing her former employer for sex discrimination. Her claim—that her male bosses limited her access to toilet paper the bathroom because, as a female, she used more than her male counterparts, and was fired after she complained about the discrimination.

An attendance love story

14 years ago today, my wife and I married.

The ceremony started at 11 am, and by 10:55 I was nervous. Not your normal, “I’m about to get married,” nervous, but the, “What the hell, we start in 5 minutes and my bride-to-be isn’t here yet” nervous. It was 2003, before the prevalence of iPhones. Without a cell phone on me, I just had to take it on faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Letter to employees during EEOC investigation may violate discrimination laws

Suppose an employee files an EEOC charge of discrimination against you. And, further suppose that during the investigation, you receive a request from the agency for the name and contact information for all similarly situated employees. You correctly assume at the EEOC may use the information to contact your employees for investigatory interviews.

Do you—

1. Allow the EEOC process to proceed; or
2. Inform your employees of the nature of the charge, the EEOC investigation, that the EEOC may contact them, and that their participation would be 100 percent voluntary?

If you choose option “2”, you may have violated federal discrimination laws, at least according to a Connecticut federal judge.