Angry, Dismayed, and Despondent. Obama Administration New Salary Basis Rule Enjoined Nationwide.

I don’t know what to say. It is still sinking in. Reading the decision is baffling and infuriating.

A federal court judge in the Eastern District of Texas has issued a nationwide stop to the implementation of the Obama DOL’s new salary basis regulation which was supposed to go into effect on December 1st. This means the change in the salary basis test which was slated to increase from $455 a week to $813 a week is not going to happen. It will still be legal for a “manager” and other administrative or professional employees to make $455 a week for unlimited hours.

I’m not going to bother going into the reasoning of the decision. There is nothing much to it other than “Congress never specifically used the word “salary” or “pay” in the Fair Labor Standards Act so…”

The decision claims to narrowly address the proposed change only, but the logic is applicable to any sort of salary basis test without particularly explaining why this amount of salary basis is illegitimate. Even though a salary basis test has been part of the regulations since the FLSA was passed in 1938 (The Fair Labor Standards Act: A Historical Sketch of the Overtime Pay Requirements of Section13(a)(1) William G. Whittaker. Pg.4). It is strange that if Congress intended the Executive, Administrative, and Professional (EAP) exemption to depend on an employee’s duties only they didn’t say anything when the regulations written at the same time the law was passed to govern the exemption included a salary basis test (“an executive or administrator would need to earn “not less than $30” for a work week.” Id. at 4)

Now the rule will be at the mercy of the incoming trump administration. Yay.

The Obama administration is at fault here in the end. Why was this important rule change, which impacts millions and millions of workers, such an afterthought? Why did the DOL wait until the 11th hour? If Obama’s Presidency has taught us anything it is the gop and their buddies in the chamber of commerce will do everything and anything legally possible to delay or derail any change which may help workers. Wasn’t it obvious this huge change, which everyone agreed would raise pay for lots of people, would be enemy number one? Instead of making a change like this a priority (G.W. Bush changed the rule back in 2004 to be arguably more employer friendly, at the beginning of his 2nd term) Obama waited until the end of his second term. Thanks, Obama! It would have been the kind of change Clinton might have been able to campaign on as a meaningful accomplishment of the Obama administration which Clinton needed to be empowered to protect from the republicans.

If the gop Congress has anything to do with it most of Obama’s regulatory changes will be overturned. If this rule change happened years ago then millions of people would already have been enjoying higher pay or the same pay for less work before trump takes over. It might be a little more difficult to change the rule back to the 2004 version when doing so would literally take money out of people’s checks in a very obvious and tangible fashion. Unlike most of the other DOL changes Obama made this one would have impacted millions of people rather than a small group like government contractors. Now this rule will never go into effect before the new administration so no one will have experienced the benefits and there won’t be a huge constituency to be mobilized to prevent regressing backwards. Nothing legally prevented Obama from making the change earlier. It was only a lack of will and apparently other priorities.

Day like this are rough. I can accept a tough decision from a judge when it is just against me and my client. It hurts, but I will live to fight another day. But when a decision like this impacts so many people in such a profound way it is much harder to let it go as a bad break or “one of those days”.

I’d like to suggest a course of action or issue a call to arms. But frankly, I don’t know what to say. The future for this rule and employment laws in general are grim under trump and this radical, right wing republican congressional majority. I guess “vote Democratic at every level of government” is my only advice. Though even then it seems like helping workers isn’t a top priority.

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