As most readers are aware, the Department of Labor has appealed the November 22, 2016 Order of Judge Amos Mazzant of the United States District Court for the Eastern District of Texas which preliminarily enjoined the December 1, 2016 implementation of increases to the salary threshold under the FLSA overtime regulations. The Department of Labor has already filed its brief with the Fifth Circuit Court of Appeals and on Tuesday, a group of 21 states filed their responsive brief with the Fifth Circuit arguing that the November 22, 2016, preliminary injunction issued by the District Court should be upheld.

The states’ brief argued that the Fair Labor Standards Act does not empower the United States Department of Labor to establish a salary threshold for determining whether an individual qualifies for the executive, administrative, or professional exemption to the federal overtime standards. In the alternative, the states argued the Tenth Amendment to the United States Constitution prohibits the Department of Labor from applying the salary threshold regulation, unless Congress is clear that the intent is to apply the FLSA to the states. Amicus briefs to support the states’ position are due by January 24, and the Department of Labor’s reply brief is due on January 31. The filing by the states joins in the Department of Labor’s request for oral argument in the matter which have yet to be scheduled.