The Supreme Court’s decision in Loper Bright marked a significant shift in administrative law.[1] For 40 years, courts have employed the Chevron standard, deferring to an agency’s interpretation of statutory text when that text was ambiguous.[2] In Loper Bright, the Supreme Court overruled this long-held precedent, marking a seismic shift in the administrative branch.[3] In a 6-3 decision, the court held that courts “must exercise independent judgment in determining whether an agency has acted within its statutory authority.”[4] The court overruled Chevron deference, rejecting the idea that statutory ambiguities inherently delegate interpretive authority to agencies. Chevron deference centered on the premise that agencies possess special expertise in their fields, warranting deference regarding their statutory interpretation. The court disagreed, noting that the Administrative Procedures Act (APA) specifically denotes that it is a court’s duty to “decide all relevant questions of law” and “interpret statutory provisions.”[5] Loper Bright has shifted the legal landscape – judges no longer defer to an agency’s interpretation. Federal courts and judges now may take a more active role in ascertaining and defining a statute’s “best” reading.

The Loper Bright decision was followed closely by Corner Post, Inc. v. Board of Governors of the Federal Reserve System.[6] In Corner Post, the Supreme Court considered when a claim under the APA accrues for purposes of challenging a particular final agency action or regulation. The Supreme Court held that the six-year statute of limitations under the APA did not accrue until a plaintiff had suffered an injury. A limitations period does not commence until the plaintiff has a complete and present cause of action. The impact of this holding is that a newly formed company, Corner Post Inc., which was formed in 2018, can bring a lawsuit in 2021 challenging a regulation enacted by the Federal Reserve Board in 2011. Why? Because Corner Post Inc. was first injured by the 2011 regulation in 2018, upon Corner Post Inc.’s creation, and thus, it can challenge the regulation that had been in place since 2011 under Loper Bright. The result of Loper Bright and Corner Post taken together is that any regulation can be challenged under Loper Bright at any time if a new “entity” or “company” brings the challenge. For employers who need certainty to create strategic plans around such things as the cost of doing business – i.e., wage and overtime expenses – these cases have not only created challenges but also opportunities.

Loper Bright will also be a tool for employers to challenge regulations that an employer deems unfair or an administrative overreach. When challenging a regulation under Loper Bright, an important factor to consider is forum selection. The cases discussed in this article come from the district and appellate courts of the 5th Circuit. This is arguably a strategic decision to appear before judges averse to agency “overreach” or to appear before judges appointed by a president whose agency heads did not oversee the promulgation of the rule being challenged. Whatever the reason, we will likely see this continue, and it will be another factor for employers to consider when thinking about challenging agency action pursuant to Loper Bright.

Lower courts were ready to act when the Loper Bright decision came down, as it took nearly no time for the impact of Loper Bright to be felt in the employment law world. Mere months after the decision in Loper Bright, a district court in the Northern District of Texas granted summary judgment to a plaintiff challenging the Federal Trade Commission’s (FTC) authority to issue a noncompete rule and ultimately issued a nationwide injunction on the rule’s enforcement.[7] The Department of Labor (DOL) also faced post-Loper Bright challenges to its authority. In August 2024, the 5th Circuit struck down the DOL’s “so-called 80/20 tip-credit rule.”[8] The Fair Labor Standards Act (FLSA) allows employers to pay tipped employees only $2.13 per hour in direct wages as long as the direct wages and tips combine to reach at least the U.S. minimum wage of $7.25 per hour.[9] The DOL promulgated a rule that “attempted to limit employers’ ability to take this tip credit, excluding employees who spent more than 20 percent of their time on nontipped activities.”[10] It also excluded those employees who spent more than 30 minutes each “shift on side work that directly support[ed] tip activity.”[11] Drawing on Loper Bright, the 5th Circuit invalidated the rule, holding that no deference was owed to the DOL’s interpretation of the text of the statute.[12] Further, the court held that the rule was arbitrary and capricious. These are just a few examples of the post-Loper Bright decisions coming from federal courts.

This article addresses one particularly relevant impact of Loper Bright on employment law and, ultimately, employers in the area of wage and hour: the use of Loper Bright to challenge the DOL’s authority to define and delimit the exemption to overtime.

THE DOL MINIMUM SALARY RULE STANDS, FOR NOW

The FLSA sets out a variety of standards and protections governing labor conditions, including minimum wage standards and overtime requirements for work beyond 40 hours.[13] The FLSA applies broadly to employees, which it defines as “any individual employed by an employer.”[14] However, there are exemptions to the overtime regulations. One of these exemptions was the subject of litigation and review by the 5th Circuit Court of Appeals.

The Minimum Salary Rule

In Mayfield, the court took up a challenge to the 2019 Minimum Salary Rule, which was promulgated pursuant to what is known as the “EAP exemption” or “white-collar exemption.”[15] This exempts “any employee employed in a bona fide executive, administrative, or professional capacity” from the time-and-a-half requirement for work performed over 40 hours of §207.[16] It also gives the secretary of the DOL the power to “define[ ] and delimit[ ]” the terms of the exemption.[17] For over 80 years, the DOL has defined the so-called EAP exemption “to include a minimum-salary requirement” that prevents workers from qualifying for the EAP exemption if their salary falls below a specified level.[18] The “DOL has long justified its rules on the ground that the terms used in the EAP exemption connote a particular status and prestige that is inconsistent with low salaries.”[19] It further asserts that “salary-level” is an effective screen for “an employee’s job duties.”[20]

The rule challenged in Mayfield was promulgated in 2019 and raised the minimum salary required to qualify for the EAP exemption from $455 per week to $684 per week.[21] Mr. Mayfield, a small business owner who runs 13 fast-food restaurants, sued the DOL, asserting the DOL lacked “the authority to define the EAP exemption in terms of salary level” and that it violates the nondelegation doctrine.[22]

The 5th Circuit’s Analysis

In determining the outcome, the court first found that Wirtz v. Mississippi Publishers Corp. did not govern the court’s analysis because there, the 5th Circuit looked at whether the Minimum Salary Rule promulgated by the DOL was arbitrary and capricious, not whether it exceeded the DOL’s statutory authority. Given that the APA clearly delineates between these two types of challenges, Wirtz was not on point.[23]

The court next ruled out the major questions doctrine, which is triggered by one of three things: economic significance, great political significance or intrusion upon the domain of state law. The major questions doctrine requires that agencies, given the principles of separation of powers and legislative intent, point to “clear congressional authorization” when addressing questions of “vast economic and political significance.”[24]

First, the court found that most cases applying the doctrine of “economic significance” “involved hundreds of billions of dollars of impact.”[25] The impact of the 2019 Minimum Salary Rule was only around “$472 million in the first year.”[26] Neither did the court find that the rule regulated a significant portion of the American economy – only 1.2 million workers were removed from the FLSA exemption by the new proposed minimum salary, a “small percentage of the overall workforce.”[27] The court noted that “whether to use salary level to determine which employees should be exempt from various FLSA protections is not in line with the type of issues that have been considered politically contentious enough to trigger the doctrine.”[28] Additionally, this power is not newly found by the DOL. It has been the one that has promulgated this type of regulation for decades. The court points out that the “DOL asserts an authority it has asserted continuously since 1938.”[29]

The court opined in dicta, “A particular minimum-salary rule could raise issues because of its size.”[30] This is interesting given that, at the time of this ruling, the DOL was considering a proposed Minimum Salary Rule that would increase the minimum salary roughly 55% from the 2019 Minimum Salary Rule.[31] However, the court went on to explain that Mr. Mayfield’s argument was that any consideration of salary in defining and delimiting the exemption was improper because it was beyond the agency’s authority. The court thus determined that the major questions doctrine did not apply.

DOL Statutory Authority

The court next looked at whether the 2019 Minimum Salary Rule exceeded the DOL’s statutory authority. Quoting Loper Bright, the court noted, “‘Courts decide legal questions by applying their own judgment,’ even in agency cases.”[32] The court must “independently identify and respect [constitutional] delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA.”[33] Congress explicitly delegated to the secretary of the DOL the authority to define and delimit the terms of the FLSA exemption.[34] Thus, the court needed to determine whether the rule fell within the “outer boundaries of that delegation.”[35]

The court set out to do this by determining what the terms “define and delimit” included in the delegation meant and whether the rule could be squared with that delegation. Mayfield asserted that the power to “define and delimit” the terms of the exemption only allowed the agency to further specify duties that qualify an employee for the exemption (i.e., what duties qualify an employee as being an executive, administrator or professional).[36] Mayfield highlights that some exemptions are defined in terms of duties, and others reference salary level, noting that Congress included a salary requirement when it wanted one.[37] The court pointed out, however, that the question here is not “whether the Exemption’s terms should be interpreted to contain a salary requirement” but rather “whether the power conferred by the explicit delegation to ‘define[ ] and delimit[ ]’ the terms of the statute allows DOL to impose a salary requirement.”[38] The DOL argued, and the court agreed, that using salary level was a permissible criterion for EAP status. The terms in the exemption “connote a particular status or level for which salary may be a reasonable proxy.”[39] Moreover, “distinctions based on salary level are also consistent with the FLSA’s broader structure, which sets out a series of salary protections for workers that common sense indicates are unnecessary for highly paid employees.”[40]

Interestingly, the court in dicta stated, “Adding an additional characteristic is consistent with the power to define and delimit, but that power is not unbounded.”[41] It further explained that a characteristic that differed so broadly in scope from the original that it effectively replaced it would raise serious questions.[42] A proxy may not yield different results than the characteristic Congress originally chose because that proxy would be replacing the terms, as opposed to defining and delimiting them. This dicta would become the foundation for Texas v. Department of Labor or “Plano,”[43] which would strike down the new rule that increased minimum salary level on a rolling basis.[44] The 5th Circuit may have been communicating to the lower court in the Eastern District of Texas when this type of rule circumvents agency authority and the analysis to apply to such a situation. In Plano, the court would ultimately find that the proxy overcame the original characteristic.[45]

The Mayfield court also included an interesting note regarding Skidmore deference, which allows the court to defer to an agency’s interpretation of a statute.[46] The weight given to the agency’s interpretation “depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier pronouncements, and all those factors which give it power to persuade.”[47] The 5th Circuit seemed to question whether this deference still stands given the pronouncement in Loper Bright that “statutes have a ‘best reading ... the reading the court would have reached if no agency were involved,’ and ‘in the business of statutory interpretation, if it is not the best, it is not permissible.’”[48] The court pointed out that this essentially means that Skidmore deference no longer exists. If the agency’s interpretation is the best, then it needs no deference because it is the interpretation the court would have reached. If it is not the best, it gets no deference because if it is not the best, deference is not permissible. The court did not address whether there can be multiple “best” readings of a statute, as reasonable minds can differ. Notwithstanding the questions it brought up, the court left it for another day because it found that the DOL’s interpretation of the exemption is the “best.”[49] It went on to point out that whatever is left of Skidmore deference would apply here. The DOL has consistently issued minimum salary rules to define and delimit the exemption and has done so since the FLSA was passed.[50] Moreover, Congress has amended the FLSA several times and has not once questioned the Minimum Salary Rule.[51]

Nondelegation Doctrine

Mayfield also asserted that the EAP exemption violated the nondelegation doctrine because it lacked “an intelligible principle to guide the DOL’s power to define and delimit the EAP exemption’s terms.”[52] The nondelegation doctrine asks whether Congress has impermissibly delegated its own power or the power of another branch to an agency. Power delegated to an agency violates the nondelegation doctrine when Congress delegates power without an intelligible principle that constrains the delegation. The intelligible principle test requires that Congress “set out guidance that ‘delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’”[53] This standard is not demanding.

The court agreed with the district court that there are at least two intelligible principles. The first of these is the “FLSA’s statutory directive to eliminate substandard labor conditions that are detrimental to the health, efficiency, and general wellbeing of workers.”[54] The second is the language of the exemption itself.[55] Each of these provisions provides guidance to the DOL on how it should exercise its authority. While these provisions are not straightforward, the existing standard is not demanding.[56] An intelligible principle needs only to be a guide for an agency; here, that guide exists. Thus, the DOL’s authority to define and delimit the terms of the EAP exemption is guided by an intelligible principle.[57]

The 2019 Rule Stands

The court affirmed the district court’s ruling, finding that the 2019 Minimum Salary Rule did not exceed the DOL’s statutorily conferred authority. Nor did it violate the nondelegation doctrine. Thus, the rule was upheld.

THE APPLICATION OF LOPER BRIGHT CHANGES THE GAME

After the 5th Circuit’s decision in Mayfield,[58] one might believe the DOL’s authority to raise the salary basis for the EAP exemption was well established. However, such is not the case. Remember that dicta quote from Mayfield:

Adding an additional characteristic is consistent with the power to define and delimit, but that power is not unbounded. A characteristic with no rational relationship to the text and structure of the statute would raise serious questions. And so would a characteristic that differs so broadly in scope from the original that it effectively replaces it.[59]

This quote would become the basis upon which the court in Plano Chamber of Commerce, et al. v. U.S. Department of Labor, et al.,[60] would vacate the 2024 DOL regulations on the minimum salary for the EAP exemption. 

Issues in Plano Chamber of Commerce

In Plano Chamber of Commerce, the Plano Chamber of Commerce (hereinafter the “chamber”) was challenging the 2024 rule issued by the DOL that raised the minimum salary for the EAP[61] exemption for overtime under the FLSA. The rule consisted of three distinct actions:

1. Effective July 1, 2024, the rule raised the minimum salary for the EAP exemption from $684 a week to $844 a week;
2. Effective Jan. 1, 2025, the rule raised the minimum salary for the EAP exemption from $844 a week to $1,128 a week; and
3. The rule implemented a mechanism for an automatic increase in the minimum salary level based on contemporary earnings data every three years.[62]

The chamber argued the 2024 rule exceeded the DOL’s authority because it increased “the minimum salary for the EAP Exemption to a level that effectively displace[d] the duties-based inquiry required by the FLSA’s text with a predominant salary-level test.”[63] The chamber noted three issues: The updating mechanisms were in excess of the statutory jurisdiction, authority or limitations granted to the DOL; the rule was arbitrary, capricious and an abuse of discretion; and it was not otherwise in accordance with the law.[64]

The Court’s Application of Loper Bright

The court applied Loper Bright, noting, “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” and the “exercise of such independent judgment ... is rooted in the ‘solemn duty’ imposed on courts under the Constitution.”[65] The court quoted Loper Bright at length, observing that 5 USC §706 of the APA “directs that ‘to the extent necessary to decision and when presented, [a] reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”[66]

The APA also requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be ... not in accordance with the law.”[67] “Courts decide legal questions by applying their own judgment.”[68] Even though a statute may authorize an agency to exercise a degree of discretion or even expressly delegate authority to an agency, “the role of reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.”[69] The court noted that this entailed three different aspects:

1. Recognizing Constitution delegations;
2. Fixing boundaries of delegated authority; and
3. Ensuring the agency has engaged in “reasoned decisionmaking” within the established boundaries.[70]

The court noted that statutory interpretation starts with the text of the statute, but if there is an ambiguity “about the scope of an agency’s own power ... abdication in favor of the agency is least appropriate.”[71]

Plano Chamber of Commerce Analysis and Holding

The court did an exhaustive review of the DOL’s actions in regard to the EAP exemption and the setting of a minimum salary basis for the EAP exemption, reviewing all the salary bases from 1938 to the present. The court found that the 2024 rule was an unlawful exercise of the DOL’s power. Some of the key findings of the court include: The terms professional, executive and administrative are defined based on their functions or duties – “It’s their duties and not their dollars that really matter.”[72] The DOL does have the power to define and delimit the terms of the EAP exemption, which does include the “creation of regulations imposing a minimum salary level for the [EAP] exemption.”[73] However, the DOL exceeded the authority delegated by Congress.[74] The DOL cannot enact rules that “replace or swallow” the meaning of the terms used in the statute, which focus on the functions or duties in determining an employee’s exempt status.[75] Applying this analysis to the minimum salary level, the court found that the use of the new minimum salary level would yield different results than the characteristics Congress chose – in other words, the minimum salary level was not defining and delimiting the exemption but was replacing the original statutory terms related to functions or duties.[76] “The Department’s authority to define and delimit the EAP Exemption’s terms through the addition of a proxy characteristic like salary, which is not included in the statutory text, ‘is not unbounded.’”[77] The court found that the minimum salary level had swallowed or replaced the statutory test of functions or duties, replacing these with a proxy that “frequently yields different results than the characteristic Congress initially chose.”[78]

To support its decision that the minimum salary level had swallowed the functions or duties test, the court reviewed the DOL’s historical approach to the salary level. Historically, the minimum salary test, since 1958, had been set so “no more than about 10 percent of those in the lowest-wage region [the South], or in the smallest size establishment group, or in the smallest sized city group or in the lowest-wage industry of each of the [industry] categories would fail to meet the test.”[79] This would become known as the Kantor Method.[80] The idea was that the minimum salary level should not disqualify more than 10% of EAP-exempt employees as determined by the long duties test.

However, in 2004, the DOL moved away from the Kantor Method and only adopted some of the factors set forth in the method. The 2004 rule selected a minimum salary level based on a wage distribution of all salaried employees rather than a distribution of exempt employees, and it accounted for some factors, such as region and industry, but not all four factors used under the Kantor Method. Most importantly, in 2004, it moved the percentage of those disqualified from 10% to 20%. Interestingly, in 2004, the DOL considered and rejected the possibility that the minimum salary level could be automatically adjusted without going through the rulemaking process, stating that the department found “nothing in the legislative or regulatory history [of the FLSA] that would support indexing or automatic increases.”[81]

In 2016, the DOL attempted to move to a single test structure, away from the long and short test, and increase the minimum salary level, moving the percentile from 20% to 40% of the weekly earnings of full-time, salaried workers in the South and implementing a mechanism to automatically update the salary level triennially.[82] Thus, the DOL only used one of the Kantor Method’s four-part test, focusing solely on the lowest-wage census region, the South. Thus, the 2016 rule did not consider the smallest-sized business establishment, the smallest-sized city group or the lowest-wage industry, as used in the earlier rulemaking.[83]

The court noted that the 2016 rule went beyond the DOL’s statutory authority and reflected a substantive change that only Congress could effectuate and had been stricken by the courts in Nevada I and Nevada II.[84] The Nevada II court held that the DOL was without power to displace the FLSA’s duties-based test with an exclusive or predominantly salary-level test and held that the automatic update mechanism was invalid.[85] Interestingly, the DOL, in 2019, in a turnabout from their position in 2016, stated that the 2016 final rule on the minimum salary increase was in tension with the FLSA and the department’s longstanding policy of setting the salary level at a level that did not disqualify a substantial number of those exempt under the EAP exemption and noted that a salary level set that high did not further the purposes of the FLSA.[86]

The court relied heavily on the Nevada II decision and the DOL’s position in 2004 on automatic update mechanisms in holding that the automatic update mechanism in the 2024 rule exceeded the DOL’s authority. Key to the court’s analysis was that the regulations specifically restricted the DOL to defining and delimiting the EAP exemption through the active process of rulemaking, and the automatic update mechanism specifically circumvented the active process of rulemaking. There is no notice or comment period in the automatic update mechanism.[87] The DOL is authorized to define and delimit the EAP exemption only through the active, repeated process of passing regulations that comply procedurally and substantively with the APA, specifically the notice and comment process.

Further, the court found that the 2024 rule effectively displaced the FLSA’s duties test with a predominant, if not exclusive, salary level test, noting that the 2024 test took the minimum salary level from the 20th percentile in 2004 to the 35th percentile as of January 2025.[88] Because it displaced the duties test, it exceeded the DOL’s authority to define and delimit the relevant terms and was in excess of the DOL’s statutory jurisdiction.[89]

On Nov. 15, 2024, the court ultimately vacated the 2024 rule – even though, effective July 1, 2024, the minimum salary for the EAP exemption had been raised from $684 per week to $844 per week. The court vacated all three portions of the 2024 rule.

THE LONG-TERM IMPACT OF LOPER BRIGHT

Importantly, Loper Bright has the capacity to impact an employer’s ability to plan its everyday business activities. From noncompete rules to salary exemptions for overtime pay to Occupational Safety and Health Administration investigations, the impact of Loper Bright will continue to be felt. Uncertainty will prevail for employers as they try to comply with the various regulations while legal action pursuant to Loper Bright proceeds. Using the 2024 rule as an example – it was in effect six months before the courts reversed the 2024 rule – employers were faced with three options: comply with the statute and adjust salaries to keep employees exempt; reclassify traditionally exempt employees into nonexempt and pay overtime; or do nothing and risk that the rule would not be reversed, leaving the employer vulnerable to wage and hour lawsuits for overtime.

Companies benefit from certainty and the ability to implement long-term strategic planning. Loper Bright injects uncertainty, which comes with the inability of a company to financially forecast and implement long-term staffing and resource allocation, which could lead to wage uncertainty and potential job and market instability. When businesses have certainty, they are able to make informed decisions, manage risk and plan for the future. This uncertainty is counterbalanced by one important benefit of Loper Bright: the ability to challenge regulations that an employer believes exceed an agency’s statutory authority. The challenge for the courts is striking a balance between the need for certainty and the need to regulate an agency’s exercise of its authority.

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ABOUT THE AUTHORS

Byrona J. Maule is a shareholder and director at Phillips Murrah PC with over 35 years of experience representing business clients in labor and employment matters and related training. Recognized by 405 Magazine in labor and employment, her clients include public institutions, private and publicly held businesses and professional organizations. Ms. Maule is a lifelong volunteer with Big Brothers Big Sisters of America and is a passionate community advocate dedicated to volunteerism and philanthropy.

 

 

 

 

Stassi M. Vullo is an attorney at Phillips Murrah PC who represents clients in a wide range of matters, including labor and employment. Ms. Vullo graduated with highest honors from the OU College of Law in 2024, where she was a Comfort Top 10 Scholar, received the OBA Business and Corporate Law Section Award and was named to the Order of the Coif.

 

 

 

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ENDNOTES

[1] Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

[2] See Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).

[3] Loper Bright Enterprises, 603 U.S. at 412.

[4] Id.

[5] Id. at 371.

[6] Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799 (2024).

[7] Ryan, LLC v. Fed. Trade Comm'n, No. 3:24-CV-00986-E, 2024 WL 3879954 (N.D. Tex. Aug. 20, 2024).

[8] Rest. L. Ctr. v. United States Dep't of Lab., 120 F.4th 163, 167 (5th Cir. 2024).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 176.

[13] 29 U.S.C. §§206, 207.

[14] Id. §203(e)(1).

[15] Mayfield v. United States Dep't of Lab., 117 F.4th 611, 614 (5th Cir. 2024).

[16] 29 U.S.C. §207, 213(a)(1).

[17] Id.

[18] Mayfield, 117 F.4th at 614.

[19] Id.

[20] Id.

[21] 84 Fed. Reg. 51230, 51231.

[22] Mayfield, 117 F.4th at 615.

[23] 5 U.S.C. §706.

[24] W. Virginia v. Env't Prot. Agency, 597 U.S. 697, 716, 732 (2022).

[25] Mayfield, 117 F.4th at 616 (citation omitted).

[26] Id.

[27] Id.

[28] Id. (citation omitted).

[29] Id.

[30] Id. (emphasis added).

[31] Id at 615.

[32] Id. at 617 (quoting Loper Bright Enterprises v. Raimondo, 603 U.S. ___, Slip Op. at 3 (June 28, 2024)).

[33] Id. at 2268.

[34] 29 U.S.C. 213(a)(1).

[35] Mayfield v. United States Dep't of Lab., 117 F.4th 611, 617.

[36] Id. at 618.

[37] Id.

[38] Id.

[39] Id.

[40] Id. (citation omitted).

[41] Id. at 618-19.

[42] Id.

[43] The state of Texas and the Plano Chamber of Commerce, along with other business organizations, filed separate lawsuits challenging the DOL's overtime rule, which increased the salary threshold for exempt employees. These cases were consolidated. This case may be referred to herein as “Texas v. DOL” or “Plano Chamber of Commerce” or “Plano.”

[44] Texas v. United States Dep't of Lab., No. 4:24-CV-499-SDJ, 2024 WL 3240618 (E.D. Tex. June 28, 2024).

[45] Id.

[46] Skidmore v. Swift & Co., 323 U.S. 134 (1944).

[47] Id. at 140.

[48] Id. (quoting Loper Bright, Slip Op. at 23).

[49] Id. at 619.

[50] Id.

[51] Id.

[52] Id. at 621.

[53] Id. at 620 (quoting Mistretta v. United States, 488 U.S. 361, 273-73 (1989) (citation omitted)).

[54] Id. at 621; 29 U.S.C. §202(a), (b).

[55] Id. §213(a)(1).

[56] Id.

[57] Id.

[58] Supra.

[59] Id. at 618-19.

[60] Texas v. United States Dep't of Lab., 756 F. Supp. 3d 361 (E.D. Tex. 2024).

[61] Executive, administrative and professional exemption.

[62] 89 Fed. Reg. 32842 (April 26, 2024) 29 CFR §541.0-541.710, hereinafter referenced as the “2024 rule.”

[63] Texas, 756 F. Supp. 3d at 369 (E.D. Tex. 2024).

[64] Id. at 382.

[65] Id. at 381, quoting Loper Bright, supra at 385.

[66] Id. at 381, internal citations omitted.

[67] Id.

[68] Id., quoting Loper Bright, supra at 371.

[69] Id., quoting Loper Bright, supra at 371 (internal citations omitted).

[70] Id.

[71] Id. at 382, quoting Loper Bright, supra at 373.

[72] Id. at 384.

[73] Id. at 385.

[74] Id. at 382.

[75] Id. at 385.

[76] Id.

[77] Id. citing Mayfield, supra at 618-19.

[78] Id.

[79] Id. at 372 citing the “Report and Recommendations on Proposed Revision of Regulations,” Part 541, Harry S. Kantor, presiding officer 6-7 (March 3, 1958) “Kantor Report.”

[80] Id.

[81] Id. at 376, citing 69 Fed. Reg. 22171.

[82] Id. at 375-76, citing 81 Fed. Reg. 32393, 32440.

[83] Id. at 376.

[84] Id. at 19. See, Nevada v. United States Dep't of Lab., 218 F. Supp. 3d 520, 526-33 (E.D. Tex. 2016) (“Nevada I”); Nevada v. United States Dep't of Lab., 275 F. Supp. 3d 795, 805-08 (E.D. Tex. 2017) (“Nevada II”).

[85] Nevada II, supra at 807-08.

[86] Texas v. DOL, supra at 390, citing 84 Fed. Reg. 51236. No doubt this change in position by the DOL was due to the change in administrations between 2016 and 2019.

[87] Id. at 386.

[88] Id. at 386.

[89] Id. at 390.