U.S. Department of Labor building in Washington, D.C.
U.S. Department of Labor building in Washington, D.C. (Photo by Mike Scarcella/ALM)

The Texas AFL-CIO wants to intervene as a defendant in the challenge over the U.S. Labor Department’s overtime-pay rule, fearing that federal agencies under Donald Trump will not adequately defend the Obama administration regulations.

A federal trial judge in November blocked the rule, which would have expanded the scope of eligibility for overtime pay to millions more workers. The U.S. Court of Appeals for the Fifth Circuit granted a request from the Justice Department, litigating the case for labor regulators, to expedite the government’s appeal.

But the litigation in the appeals court will spill into Trump’s administration, giving his Justice and Labor departments a chance to revise their position in the litigation. That worries the Texas AFL-CIO.

“We’re not saying that the Department of Labor and the Department of Justice haven’t forcefully defended the regulations [so far], but as for whether that will continue in the future, we’re starting to have serious concerns,” Yona Rozen, an assistant general counsel at the AFL-CIO, said in an interview Monday. Rozen is representing the Texas branch in the litigation in front of U.S. District Judge Amos Mazzant III in the Eastern District of Texas.

The AFL-CIO branch’s rare motion, filed Dec. 9, marks the latest chapter in a long fight over the rules, which labor regulators contend will provide time-and-a-half overtime pay to an additional 4 million workers.

The plaintiffs in the case, including 21 states, won a preliminary injunction last month. The challengers in the consolidated litigation—including the states and business groups such as the U.S. Chamber of Commerce—contend the rules violated states’ rights and the Administrative Procedure Act.

In order to intervene in the case, the Texas AFL-CIO must show it has sufficient interest in the issues and that its position won’t be represented adequately by the current named defendants. The plaintiffs oppose the Texas AFL-CIO’s request to intervene. The Justice Department on Monday said it takes no position on the Texas labor group’s request.

The motion filed by the Texas AFL-CIO, a federation of 650 local Texas unions, anticipates that Trump’s Labor Department will not support the rule. Andrew Puzder, the fast-food company chief executive who is Trump’s pick for Labor secretary, has opposed the Obama administration’s push to boost worker-pay.

“With the recent presidential election, and particularly as more information becomes available regarding the incoming administration’s plans, policy and appointments, the Texas AFL-CIO has grave concerns as to whether its interests in the final rule will be represented by the DOL,” the labor group wrote in its court papers.

Attorneys for the AFL-CIO said that losing the overtime rules would cause workers to suffer a “downward pressure” on salaries and benefits created by following the existing overtime rule standards, which have not been updated since 2004.

The Office of Texas Attorney General Ken Paxton declined to comment on the AFL-CIO motion, citing the ongoing litigation.

A spokesperson for the U.S. Chamber said in an email: “We believe Judge Mazzant’s opinion was correct and we look forward to defending it on any appeal.”

Copyright Texas Lawyer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.