Posts

Is this the end of non-compete clauses in America?

Non-compete agreement document for filling and signing on desk stockBy Janet A. Hendrick and Angela M. Buchanan

Janet Hendrick and Angela Buchanan portraits

Janet A. Hendrick and Angela M. Buchanan

For decades, non-compete clauses and other restrictive covenants have protected American businesses from unfair competition by preventing departing employees from working for a direct competitor for a specified time and within a specified geographical area.  Today, non-competes are still a useful tool, but their effectiveness depends on whether the covenant is narrowly tailored to legitimate business interests and, because state law governs enforceability, whether the relevant jurisdiction allows employers to enforce the covenants.

Although most states allow enforcement of reasonable non-competes, the increasing trend is to limit or ban their use.  In California, North Dakota, the District of Columbia, and Oklahoma, non-competes are either entirely or largely unenforceable as against public policy. Other states, including Maine, Maryland, New Hampshire, Rhode Island, and Washington, have banned non-compete agreements for low-wage workers.

This year, non-compete agreements have faced new obstacles in several jurisdictions. In May, Oregon passed legislation to curtail the use of non-competes so that they may only be enforced if the employee earns more than $100,533/year, the restricted period does not exceed 12 months, and the employer agrees in writing to provide the greater of (i) 50% of the employee’s compensation at the time of termination or (ii) $100,533 annually during the restricted period.  Nevada passed Assembly Bill 47 in May, which significantly increases Nevada’s restrictions on non-compete agreements.  The new Nevada law, which is effective October 1, 2021, voids non-compete agreements for hourly employees. The Nevada law also prevents employers from restricting employees from working for a customer if the employee did not solicit the customers for the former employer, the customer voluntarily left the employer, and the employee generally complies with the non-compete agreement. To give the new law teeth, it allows an employee who successfully challenges a non-compete to recover attorneys’ fees and costs. Following on the heels of Oregon and Nevada, Illinois passed legislation in June that prohibits non-compete clauses for employees earning less than $75,000/year and bans non-solicitation agreements, which restrict which customers an employee can call on, for employees earning less than $45,000/year.  Both of these salary thresholds will increase annually. The governor of Illinois is expected to sign the new prohibitive legislation so that the law will go into effect on January 1, 2022.

Like these states, the federal government has also taken steps to limit the use of non-competes. In July, President Biden issued the Promoting Competition in the American Economy Order, which asks the Federal Trade Commission to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Although the Order does not change current law, it is a clear sign that non-competes will face extra scrutiny and may eventually be limited under federal law.

Considering the continuing wave of non-compete reform, employers, particularly those that operate in multiple states, should monitor developments in the relevant states and carefully consider choice of law and forum selection clauses for agreements. The Labor & Employment attorneys of Phillips Murrah have substantial experience in negotiating, drafting, and litigating issues relating to employment agreements and restrictive covenants.  If you would like additional information, please reach out to the firm.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding new rules that affect employers.


Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

facebook icon

Follow our coverage on FACEBOOK

Texas Small Businesses Beware: New Laws Expand Liability for Sexual Harassment Claims

sexual harassment graphic 2By Janet A. Hendrick and Laurel L. Baker

Janet Hendrick and Laurel Baker portraits

Janet A. Hendrick and Laurel L. Baker

September 1, 2021 marks the beginning of a new era for sexual harassment claims against employers in Texas. Texas is notorious for protecting its pro-employer policies, but recent legislation goes against the grain to make all businesses, regardless of size, subject to liability for sexual harassment claims.

  1. Senate Bill 45 Broadens Definition of “Employer” and Scope of Liability

Senate Bill 45, signed by Governor Greg Abbott on May 30, 2021, adds Section 21.141 to the Texas Labor Code to define “employer” as “a person who (A) employs one or more employees; or (B) acts directly in the interests of an employer in relation to an employee.” Currently, only employers with fifteen or more employees can be sued for sex harassment, under either federal or Texas law, but the new Texas law will subject all employers doing business in Texas, regardless of size, to these claims. Additionally, the law expands liability to individuals, such as officers, directors, and other employees, so an employee claiming sex harassment can sue not just the employer, but these individuals.

  1. Senate Bill 45 Requires Employers to Act Immediately

Historically, employers subject to sex harassment claims can avoid liability by taking prompt remedial action when an employee alleges sex harassment.  The new Texas law changes this standard, requiring employers to take “immediate and appropriate corrective action.”  What exactly this standard will require remains to be seen, as Texas courts will no doubt face interpreting the standard for years to come.

  1. House Bill 21 Lengthens the Statute of Limitations for Employees to File Claim

Under current Texas law, an employee has 180 days to file a sexual harassment claim with the Texas Workforce Commission. House Bill 21, signed by Governor Abbott on June 9, 2021, extends this period to 300 days for claims based on conduct that occurred on or after September 1, 2021. The 180-day period will still apply to other discrimination claims, including discrimination based on sex, race, color, disability, national origin, or religion.

Although it is yet to be determined exactly how these changes will be interpreted and applied, it is imperative that all employers—regardless of size—be proactive to ensure they are taking measures to minimize liability for sexual harassment claims. Three important steps are (1) robust policies, that allow reporting through multiple avenues, (2) manager training, and (3) swift action to investigate claims. Phillips Murrah has extensive experience investigating and defending sex harassment claims and working with employers to make sure their training, policies and procedures protect their businesses. For assistance, contact your Phillips Murrah labor and employment lawyer.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding new rules that affect employers.


Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

facebook icon

Follow our coverage on FACEBOOK

Phillips Murrah named among 2021 Best Law Firms in 47 practice areas

Phillips MurrahPhillips Murrah is proud to announce that our law firm has been recognized by U.S. News & World Report’s 2021 “Best Law Firms” for professional excellence for the Oklahoma City Metropolitan Area and the Dallas/Fort Worth area in the following practice areas:

Oklahoma City

Tier 1

  • Administrative / Regulatory Law
  • Banking and Finance Law
  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Business Organizations (including LLCs and Partnerships)
  • Commercial Finance Law
  • Commercial Litigation
  • Commercial Transactions / UCC Law
  • Corporate Law
  • Energy Regulatory Law
  • Financial Services Regulation Law
  • Government Relations Practice
  • Information Technology Law
  • Insurance Law
  • Litigation – Bankruptcy
  • Litigation – Labor & Employment
  • Litigation – Land Use & Zoning
  • Litigation – Real Estate
  • Litigation – Tax
  • Natural Resources Law
  • Product Liability Litigation – Defendants
  • Real Estate Law
  • Trusts & Estates Law

Tier 2

  • Employment Law – Management
  • Energy Law
  • Land Use & Zoning Law
  • Litigation – Banking & Finance
  • Mergers & Acquisitions Law
  • Oil & Gas Law
  • Personal Injury Litigation – Defendants
  • Public Finance Law
  • Securities Regulation
  • Tax Law
  • Water Law
  • Workers’ Compensation Law – Employers

Tier 3

  • Bet-the-Company Litigation
  • Construction Law
  • Environmental Law
  • Family Law
  • Health Care Law
  • Labor Law – Management
  • Litigation – Antitrust
  • Litigation – ERISA
  • Litigation – Trusts & Estates
  • Mass Tort Litigation / Class Actions – Defendants
  • Medical Malpractice Law – Defendants
  • Technology Law

Dallas/Fort Worth

Tier 3

  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

 

To be eligible for a ranking, a law firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top four percent of practicing attorneys in the United States.

Earlier in the year, Phillips Murrah announced that 61 of our attorneys are recognized by Best Lawyers in America for 2021.

Firms included in the 2020 “Best Law Firms” list are recognized for professional excellence, quality law practice and breadth of legal expertise. The “Best Law Firms” rankings are based on a combination of client feedback, information provided on the Law Firm Survey and the Law Firm Leaders Survey and Best Lawyers peer-review.

Phillips Murrah named among 2020 Best Law Firms in 45 practice areas

Phillips Murrah is proud to announce that our law firm has been recognized by U.S. News & World Report’s 2020 “Best Law Firms” for professional excellence for the Oklahoma City Metropolitan Area and, for the first time, the Dallas/Fort Worth area in the following practice areas:

Oklahoma City

Tier 1

  • Administrative / Regulatory Law
  • Banking and Finance Law
  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Business Organizations (including LLCs and Partnerships)
  • Commercial Litigation
  • Commercial Transactions / UCC Law
  • Corporate Law
  • Energy Law
  • Energy Regulatory Law
  • Government Relations Practice
  • Insurance Law
  • Litigation – Bankruptcy
  • Litigation – Real Estate
  • Litigation – Tax
  • Natural Resources Law
  • Oil & Gas Law
  • Product Liability Litigation – Defendants
  • Real Estate Law
  • Trusts & Estates Law

Tier 2

  • Construction Law
  • Employment Law – Management
  • Health Care Law
  • Land Use & Zoning Law
  • Litigation – Banking & Finance
  • Litigation – Labor & Employment
  • Litigation – Land Use & Zoning
  • Mergers & Acquisitions Law
  • Public Finance Law
  • Securities Regulation
  • Tax Law
  • Workers’ Compensation Law – Employers

Tier 3

  • Bet-the-Company Litigation
  • Environmental Law
  • Family Law
  • Labor Law – Management
  • Litigation – Antitrust
  • Litigation – ERISA
  • Litigation – Trusts & Estates
  • Mass Tort Litigation / Class Actions – Defendants
  • Medical Malpractice Law – Defendants
  • Personal Injury Litigation – Defendants
  • Securities / Capital Markets Law
  • Technology Law
  • Venture Capital Law

Dallas/Fort Worth

Tier 3

  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

 

To be eligible for a ranking, a law firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top four percent of practicing attorneys in the United States.

Earlier in the year, Phillips Murrah announced that 48 of our attorneys are recognized by Best Lawyers in America for 2020.

Firms included in the 2020 “Best Law Firms” list are recognized for professional excellence, quality law practice and breadth of legal expertise. The “Best Law Firms” rankings are based on a combination of client feedback, information provided on the Law Firm Survey and the Law Firm Leaders Survey and Best Lawyers peer-review.

Wolfe reflects on Law Firm growth in Dallas market for Texas Lawyer article

Thomas G. Wolfe, Managing Partner at Phillips Murrah law firm, was interviewed by Brenda Sapino Jeffreys for an article for Texas Lawyer on Law.com, giving insights on the Firm’s venture into the Texas legal market and on business strategies the Firm has found successful in Dallas.

Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.

Read more below:

What do you view as the two biggest opportunities for your firm, and what are the two biggest threats?

For Phillips Murrah, our biggest opportunity is easy: TEXAS.  We opened our Dallas law firm about a year-and-a-half ago, and as a new entrant to the Texas legal market, we see virtually unlimited opportunities to gain clients, expand existing relationships and add top talent. Over the past 18 months, we have grown our Texas office from one full-time lawyer to five while increasing the quantity of work being handled for Texas-based companies more than tenfold. While much of that work is for new clients, we are also providing an expanding range of service to existing clients based in Texas and elsewhere.

The second opportunity for the firm is the ability to provide existing Oklahoma-based clients with niche services from Texas-based lawyers. In some cases, there are only a handful of Oklahoma lawyers in a niche practice while the pool of practitioners in Texas is much larger.

While Texas presents a huge opportunity, the size of the legal market and the number of competitors also serve as a threat. As a roughly 75-lawyer firm, we cannot chase every opportunity. We must remain focused and chose carefully.

Growth also presents a challenge to our firm culture, which has been a cornerstone for our success. As Phillips Murrah added, and then added to, a second office, we have worked diligently to include Oklahoma lawyers on teams serving Texas-based clients and vice versa. Since opening in Dallas, half of our Oklahoma lawyers have worked on relationships managed by a Texas lawyer while everyone in our Dallas office has worked on a relationship managed from our Oklahoma City headquarters. Fortunately, Oklahoma City is as close to Dallas as Austin and much closer than Houston.

The full article is exclusive to Law.com subscribers. Click here to view the full article.


The legal market is so competitive now—what trends do you see, and has anything, including alternative service providers, altered your approach? Is your chief competition other mid-market firms, or is your firm competing against big firms for the same work?

The market is clearly stratifying. We spend most of our energy on work, and on seeking work, that we can handle with our breadth and depth of practices, and for which we are attractive from a value perspective with the advantage provided by lower overhead from our Oklahoma City base. As a result, we focus on “run the company” work for very large companies and handling both “run the company” and “bet the company” work for middle-market businesses.

From a Firm perspective, we see competition across the size-of-firm spectrum. We have won business from smaller firms based upon a combination of our full-service offerings and our reasonable rates. We have also won business from very large firms because we have experienced attorneys in a broad range of practice areas, much lower rates and a long-term relationship. At the same time, we have lost work to small firms that charge less or have great client relationships and to large firms that offer a broader range of practice and more depth despite much higher rates.

There is much debate around how law firms can foster the next generation of legal talent. What advantages and disadvantages do midsize firms have in attracting and retaining young lawyers, particularly millennials?

While members of our Firm share common goals and values as it relates to our work, our leadership recognizes that different generations may have different approaches.  Regarding our young lawyers, we strive to make apparent from the outset that our Firm’s culture places high value on both personal congeniality and work-life balance. We recognize that practicing law is challenging and time-consuming work, so it is important to us to provide opportunities for our younger lawyers to develop as leaders, originators and contributors in the community while offering the flexibility to develop their particular interests outside of the office.

We also have a high percentage of women leaders at our Firm, which we believe is an important indicator to our younger lawyers that Phillips Murrah walks the walk when it comes to factors important to generations entering the workforce.

Does your firm employ any non-lawyer professionals in high-level positions (e.g. COO, business development officer, chief strategy officer, etc.)? If so, why is it advantageous to have a non-lawyer in that role? If not, have you considered hiring any?

Our Executive Director sits on the Firm’s Executive Committee and brings a prospective that is different than most attorneys.  She is the one non-voting, non-elected member of the Executive Committee and a constant within the Executive Committee, so in addition to her perspective, she has the institutional knowledge that comes with that.  The Firm’s CFO is an integral part of the Firm’s management, attends Board Meetings, and also presents a fresh and different perspective.

What would you say is the most innovative thing your firm has done recently, whether it be technology advancements, internal operations, how you work with clients, etc.?

Perhaps the most innovative thing we are doing lately is both technological and deals with good-old human nature. While we have really shored up our electronic defenses, now we’re working on strengthening our human defenses through conducting firm-wide internet security training and awareness exercises using a platform called KnowBe4. This platform allows us to simulate phishing attempts, and other ploys generally referred to as “social engineering,” in order to raise awareness of cyber threats within our Firm. No matter how high-tech the security technology is, it is still possible to break through those defenses by fooling people. This security awareness training plugs the holes that would otherwise exist due to lack of awareness of these threats. When people in our Firm recognize these cyber-threat attempts and know how to properly respond, it gives us an important additional level of security.

Does your firm have a succession plan in place?  If so, what challenges do you face in trying to execute that plan? If you don’t currently have a plan, is it an issue your firm is thinking about?

The Firm is in the beginning stages of creating a succession plan.  The Strategic Planning Committee, the Executive Committee and the Practice Group Leaders met with a consultant recently to get input for beginning that process.  At the recommendation of the consultant, the Executive Committee intends to start with the upcoming individual year-end meetings for attorneys that are 58 years and older.  We plan on tailoring the succession plans for each individual based on their practice, intended retirement dates and their clients.

Hendrick partners with North Texas LGBT Chamber of Commerce

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Director Janet A. Hendrick joins the North Texas LGBT Chamber of Commerce, supporting the organization for 2019-2020 as a Bronze Partner and taking on a hands-on role.

“I met the President of the Chamber, Tony Vedda, at the Dallas Business Equality Conference a few years ago, where I was asked to speak about evolving rights for LGBT employees in the U.S.,” she said. “We stayed in touch and he later asked me to be a member of the Chamber’s Governance Committee, the role of which is to assist in selection of the Chamber’s Board of Directors.

“I spoke again this year at the Business Equality Conference, which is sponsored by progressive Dallas-based companies like Toyota, Southwest Airlines and American Airlines.”

Janet is an experienced employment litigator who regularly appears in state and federal court to defend employers of all sizes against discrimination, harassment, retaliation, and related claims. She is a frequent speaker and author on topics including gender diversity in the legal profession, workplace accommodations and leave management, evolving workplace protections of LGBT employees, and the rapidly expanding gig economy.

The North Texas Lesbian Gay Bisexual Transgender Chamber of Commerce has been the premier business organization for the LGBT community in north Texas since 2005, working to improve the region’s economic vitality and support the positive attributes of a diverse workplace, supply chain and community.

To learn more about the North Texas LGBT Chamber of Commerce and its mission, click here.

Phillips Murrah welcomes Janet A. Hendrick to Dallas office

Phillips Murrah welcomes Dallas employment attorney, Janet A. Hendrick, to our Dallas office.

Phillips Murrah welcomes Dallas employment attorney, Janet A. Hendrick, to our Dallas office.

Phillips Murrah P.C. is pleased to announce that Janet Hendrick has joined the Firm in its Dallas-based office. Janet is an employment attorney with nearly 20 years of experience. She brings the number of Phillips Murrah attorneys serving the Texas market to twelve.

“We are excited that Janet has joined Phillips Murrah as we continue to expand our Dallas office,” said President and Managing Partner, Thomas G. Wolfe. “She is a brilliant lawyer with a first-class resume.”

Janet represents employers in several capacities, including proactively counseling clients on best employment practices and compliance, advising on cutting-edge legal issues surrounding the rapidly expanding gig economy, handling audits and investigations, and conducting training. She aggressively defends clients in state and federal courts and in arbitration on a range of matters including employee defection, fair employment practices, and nonsubscriber employee injury defense.

“I like to understand a client’s objectives and what it considers to be a victory,” she said, adding that communicating initially and then often with clients to understand their business needs is fundamental to being a strategic partner.

Janet is deeply committed to the advancement of women in the legal profession. She has been an active member of the National Association of Women Lawyers and the Dallas Women Lawyers Association, and is a thought leader and sought-after speaker on gender diversity in the legal profession. With the addition of Janet, over 40 percent of Phillips Murrah’s directors are women, more than twice the national average for large law firms. A significant number of women fill leadership roles at the Firm, including three of the four positions on the Executive Committee.

“I am impressed with the dynamic people at the Firm, especially the leadership,” Janet said of her motivation to join Phillips Murrah. “I’m also excited about the plans for the Dallas office and thrilled to be a part of building the future of the Firm.”

Janet has been recognized as one of the Texas Diversity Council’s Dallas Top 50 Women in Law and the National Women’s Council’s Top 15 Business Women in Dallas. Additionally, she is a member of the North Texas GLBT Chamber of Commerce Governance Committee, the American Bar Association Labor and Employment Section, the Dallas Bar Association Labor and Employment Section, and the Collin County Bar Association.

Prior to joining Phillips Murrah, Janet practiced with Fisher Phillips, a national labor and employment firm, in Dallas. She also previously practiced with Jones Day in Dallas, New York, Washington DC and London.

See post about Law360 coverage here: Dallas employment attorney Janet A. Hendrick tells Law360 why she joined Phillips Murrah 

Phillips Murrah – Dallas Office:
3710 Rawlins Street, Suite 900
Dallas, Texas 75219

Main: (214) 238-2525
Direct: (214) 615-6391
Fax: (214) 434-1370

Like a horror movie villain, Obama overtime rule fight won’t die

Published on October 30, 2017

New York — The Obama administration’s 2016 overtime rule was left for dead after a Texas federal judge struck it down, but the controversial regulation started stirring again a day before Halloween when the U.S. Department of Labor decided to appeal, a move experts said is designed to protect the agency’s authority to set a salary threshold for overtime exemption that’s more to the Trump administration’s liking.

The Labor Department notified U.S. District Judge Amos Mazzant on Monday that it would be appealing his August order invalidating the Obama administration’s 2016 rule that greatly expanded the Fair Labor Standards Act’s overtime exemptions for executive, administrative and professional, or EAP, workers. The rule would have doubled the minimum salary required to qualify for the exemption from $23,660 annually to just over $47,000 per year, increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000, and created an index for future increases.

Labor Secretary Alex Acosta has indicated on numerous occasions that the Trump DOL would seek to write a revised version of the rule that sets a salary level somewhere between the one proposed in 2016 and the existing threshold of $23,660, set in 2004 by the Bush administration.

Locke Lord LLP partner Richard Glovsky pointed out that a notice of appeal is a perfunctory step that simply reserves a party’s right to pursue an appeal. “My impression is that the DOL is not 100 percent sure what it wants to do,” Glovsky told Law360. “It wants to keep its options open.”

In a statement shortly after it filed Monday’s notice, the DOL indicated that it will ask the Fifth Circuit to stay the case as soon as the appeal is docketed while the agency “undertakes further rulemaking to determine what the salary level should be.”

But there’s a problem: It’s not clear from Judge Mazzant’s ruling whether the agency has the authority to use salary as a basis for defining the EAP exemption in the first place — leading experts to speculate that affirming that authority is the primary reason behind the DOL’s appeal.

“It’s not the normal [type of case] you see. It has some different twists and turns to it,” said David C. Burton, a partner at Williams Mullen. “The DOL wants to get [its new] rule out without this litigation putting them in the position of having to argue whether or not they have the authority to issue it.”

Christine Owens, executive director of the National Employment Law Project, a workers’ rights group that has remained steadfast in its support of the 2016 rule, said in a statement that the DOL’s appeal “is good news for the millions of workers who need better protections of their right to overtime pay,” and that the agency “is right to defend its authority to issue a robust salary threshold to set the baseline for this exemption.”

The apparent uncertainty over the DOL’s ability to set a salary threshold for overtime exemption stems from Judge Mazzant’s November ruling issuing a preliminary injunction blocking the rule. The judge said then that nothing in the exemption indicates Congress wanted the DOL to define employee classifications with respect to a minimum salary level.

That decision raised enough of a question about the scope of the DOL’s authority regarding the EAP exemptions that the agency addressed it in a brief at the Fifth Circuit in June, after the Trump administration was in place. The agency said that while it “decided not to advocate for the specific salary level” set by the 2016 rule, it nonetheless had the power to use salary as a component for testing whether a worker should be paid overtime.

That appeal, which has since been withdrawn, was challenging Judge Mazzant’s preliminary injunction.

In his August ruling invalidating the 2016 rule outright, Judge Mazzant said the salary level set by the DOL was so high that it flouted Congress’ intention that the overtime exemption apply to employees who perform “bona fide executive, administrative or professional capacity” duties.

He said that by setting the salary level where it did, the DOL effectively eliminated the so-called duties test for determining which workers are eligible for the EAP exemption, which it lacked the authority to do.

Judge Mazzant, however, was careful to note that he wasn’t making any determination regarding the lawfulness of the salary level test or the DOL’s authority to issue one, saying instead that he evaluated only the salary-level test as proffered in the 2016 rule.

Attorneys speculated following that ruling that it still left plenty of room for interpretation as to whether the DOL has the ability going forward to use a salary test when dealing with the overtime exemption.

Steven Pockrass, co-chair of Ogletree Deakins Nash Smoak & Stewart PC’s wage and hour practice, told Law360 on Monday that the DOL is likely trying to “get [Judge Mazzant’s August decision] off the books so there is no longer any ruling that limits the DOL’s authority” still in effect.

“The goal is to get the district court’s decision vacated as if it was never on the books,” Pockrass said, noting that he expects the government to also argue after it issues a new rule that the appeal is moot.

But that approach could also backfire, attorneys say, since the Fifth Circuit may decide not to grant the DOL’s request for a stay.

Burton noted that by filing an appeal, the DOL could be opening the door for the Fifth Circuit to overturn Judge Mazzant’s ruling and uphold the Obama-era rule in full, which would create even greater procedural hurdles for the Trump DOL to justify any changes if it later decides to revisit the regulation and set a salary threshold it considers more appropriate.

In another procedural twist on Monday, the AFL-CIO also filed its own notice of appeal with Judge Mazzant, who had previously denied the union’s bid to intervene in the case.

Glovsky, for one, noted that the union may ultimately present an argument that coincides to some extent with the agency’s position that it has the power to set a salary level threshold.

But the union may go further and “try to get the Obama regulation to be upheld in its entirety” if it has the opportunity to present arguments to the Fifth Circuit, Glovsky said.

The cases are State of Nevada et al. v. U.S. Department of Labor, case number 4:16-cv-00731, and Plano Chamber of Commerce et al. v. R. Alexander Acosta, case number 4:16-cv-00732, in the U.S. District Court for the Eastern District of Texas.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.