THE OKLAHOMA BAR JOURNAL 36 | AUGUST 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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 postLoper 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
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