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By Jon Steingart

The Department of Labor received a third delay in its appeal of a judge’s order that hit pause on the agency’s overtime rule (Nevada v. DOL, 5th Cir., No. 16-41606, 4/19/17).

The delay pushes back the deadline for the DOL’s next filing in the case by 60 days, from May 1 to June 30. This will give incoming leadership at the department time to review the DOL’s position, the Department of Justice said in an April 14 motion. The DOJ represents the Labor Department in the litigation, which is on appeal in the U.S. Court of Appeals for the Fifth Circuit.

The latest request for a delay marked the first time the government cited the lag in confirming a labor secretary in its motions. The Senate is expected to act on the confirmation of Alexander Acosta—President Donald Trump’s second choice for the post—the week of April 24 after lawmakers return from a two-week recess. A Senate committee approved Acosta’s nomination March 30. The confirmation process restarted after Trump’s first pick withdrew Feb. 15.

The DOL rule would have doubled—to $47,500—the salary threshold below which workers would automatically be eligible to earn overtime. It was scheduled to take effect Dec. 1, but a judge blocked it Nov. 22, finding the DOL lacked authority under the Fair Labor Standards Act.

Acosta during his March 22 confirmation hearing questioned whether salary level is a good tool for determining overtime eligibility. Variations in the cost of living over time and by region mean there might be a better number for the salary threshold, which was last revised in 2004, he said. “If you’re to apply a straight inflation adjustment, I believe that the figure, if it were to be updated, would be somewhere around $33,000,” he told members of the Senate Health, Education, Labor and Pensions Committee.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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