AUGUST 2025 | 41 THE OKLAHOMA BAR JOURNAL 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. 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. 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.
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