An Untested Clause Could Fortify DOL's Overtime Rule

Labor, Employment and Benefits attorney Timothy Taylor was quoted in a Law360 article about the novel severability clause included in the U.S. Department of Labor's (DOL) recent rule expanding overtime protections for workers. The clause aims to fortify the rule against potential legal challenges by allowing parts of it to remain effective if other components are blocked by courts. The article analyzed how the severability provision could help the DOL's rule withstand critics by allowing distinct elements like raising the salary threshold and providing automatic updates to be reviewed independently. It also explored the legal strategy behind including such a clause upfront during the rulemaking process, with insights from former DOL officials, employment law advocates and legal scholars. Mr. Taylor noted that challengers will likely argue that striking down the rule altogether is more effective than separating individual parts.

"If I was a litigant on this rule, I think the argument would be that the automatic updating is in fact inextricably tied up with the thresholds. If that higher threshold in January is unlawful, then the automatic update is unlawful as well because you can't really carve out one from the other," he said.

READ: An Untested Clause Could Fortify DOL's Overtime Rule (Subscription required)