Case: 23-50724 Document: 95-1 Page: 1 Date Filed: 09/11/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
September 11, 2024
No. 23-50724
____________ Lyle W. Cayce
Clerk
Robert Mayfield; R.U.M. Enterprises, Incorporated,
Plaintiffs—Appellants,
versus
United States Department of Labor; Martin Walsh,
Secretary, U.S. Department of Labor,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-792
______________________________
Before Wiener, Elrod, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
For more than eighty years, the Department of Labor has defined the
so-called White Collar Exemption in the Fair Labor Standards Act to include
a minimum-salary requirement. Robert Mayfield challenges the latest rule,
which updates the minimum salary necessary to fall within the Exemption,
on the ground that promulgating any rule imposing a salary requirement
exceeds the Department’s statutorily conferred authority or else violates the
nondelegation doctrine. The district court granted the Department’s motion
for summary judgment. Because the 2019 Minimum Salary Rule falls within
Case: 23-50724 Document: 95-1 Page: 2 Date Filed: 09/11/2024
No. 23-50724
the Department’s explicitly delegated authority to define and delimit the
terms of the Exemption, and because that power is not an unconstitutional
delegation of legislative power, we AFFIRM.
I
The Fair Labor Standards Act sets out a variety of standards and
protections governing labor conditions. See 29 U.S.C. § 201, et seq. For
example, it sets a minimum wage and requires overtime for work beyond forty
hours per week.
Id. §§ 206(a), 207(a)(1). Though the FLSA defines the
workers to whom the statute applies broadly, see id. § 203(e)(1) (defining
“employee” as “any individual employed by an employer”), it also contains
a series of exemptions that exclude certain types of employees from that
definition. Relevant here, the FLSA exempts “any employee employed in a
bona fide executive, administrative, or professional capacity.” Id. §
213(a)(1). That exemption is known as the “EAP Exemption” or the “White
Collar Exemption, and it gives the Secretary of the Department of Labor the
power to “define[] and delimit[]” the “terms” of the exemption. Id.
Though the EAP Exemption, like many of the other FLSA
exemptions, defines qualifying workers through duties and job types, see id.
§ 213(a)(3), (5), (8), (10), (12), (15)–(19), DOL has repeatedly issued a
minimum-salary rule that prevents workers from qualifying for the
Exemption if their salary falls below a specified level. 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. 1 As the
district court explained in its comprehensive history of DOL’s various
_____________________
1
See, e.g., U.S. Dep’t of Labor, “Executive, Administrative, Professional . . . ,
Outside Salesman” Redefined: Report and Recommendations of the Presiding Officer
[Harold Stein] at Hearings Preliminary to Redefinition 19 (1940).
2
Case: 23-50724 Document: 95-1 Page: 3 Date Filed: 09/11/2024
No. 23-50724
minimum-salary rules, “[h]istorically, the Department has justified the use
of a salary-level test by pointing to its effectiveness as a screen for an
employee’s actual duties.”
In 2019, DOL issued a new version of what is known as the
“Minimum Salary Rule,” raising the minimum salary required to qualify for
the Exemption from $455 per week to $684 per week, an increase of 50.3%.
84 Fed. Reg. 51230, 51231. DOL is currently considering a proposed rule
that would raise the minimum salary to $1,059 per week, a roughly 55%
increase from the 2019 Rule.
88 Fed. Reg. 62152.
Mayfield sued DOL, claiming that the 2019 Rule exceeds DOL’s
statutorily conferred authority. Mayfield is a small-business owner who runs
thirteen fast-food restaurants in Austin, Texas. According to Mayfield, his
businesses succeed by offering high bonus payments to the best performing
store managers. He asserts that the Rule forces him to pay a higher salary to
all managers regardless of performance, leaving him with insufficient funds
to reward the best performers.
Mayfield does not argue that DOL lacks the authority to raise the
minimum salary, nor does he maintain that the particular salary level DOL
chose is invalid. Rather, he argues that DOL lacks, and has always lacked,
the authority to define the EAP Exemption in terms of salary level.
Mayfield and DOL filed cross-motions for summary judgment. The
district court granted DOL’s motion and denied Mayfield’s motion.
Mayfield timely appealed.
II
We begin with two preliminary questions: whether our precedent
dictates the outcome in this case, and if not, whether the major questions
doctrine applies.
3
Case: 23-50724 Document: 95-1 Page: 4 Date Filed: 09/11/2024
No. 23-50724
A
DOL contends that Mayfield’s arguments are foreclosed by Wirtz v.
Mississippi Publishers Corp., 364 F.2d 603 (5th Cir. 1966). In Wirtz, we
considered whether the Minimum Salary Rule is an unjustified regulation
“under [the FLSA] because [it is] not rationally related to the determination
of whether an employee is employed in a ‘bona fide executive . . . capacity.’”
Id. at 608 (quoting
29 U.S.C. § 213(a)(1)). Because the FLSA gives DOL
“broad latitude” to define the meaning of “bona fide executive,” we “[could
not] say that the minimum salary requirement is arbitrary or capricious.”
Id.
Wirtz does not control our analysis: there, we addressed whether the
Minimum Salary Rule is arbitrary and capricious, but Mayfield argues that it
exceeds DOL’s statutory authority. The Administrative Procedure Act, 5
U.S.C. § 551 et seq., clearly distinguishes between those two types of
challenges, making them separate bases for setting aside agency action.
Compare
5 U.S.C. § 706(2)(A) (arbitrary and capricious), with
id. § 706(2)(C)
(exceeding statutory authority). Holding that a rule survives a particular type
of APA review does not determine how it fares under other types of review,
even if both types of review raise similar issues.
B
We must next consider whether the major questions doctrine plays a
role in our analysis. “[I]n certain extraordinary cases, both separation of
powers principles and practical understanding of legislative intent make [the
court] reluctant to read into ambiguous statutory text the delegation claimed
to be lurking there. To convince [the court] otherwise, something more than
a merely plausible textual basis for the agency action is necessary. The
agency instead must point to clear congressional authorization for the power
it claims.” West Virginia v. EPA, 597 U.S. 697, 723 (2022) (citation and
internal quotation marks omitted).
4
Case: 23-50724 Document: 95-1 Page: 5 Date Filed: 09/11/2024
No. 23-50724
There are three indicators that each independently trigger the
doctrine: (1) when the agency “claims the power to resolve a matter of great
political significance”; (2) when the agency “seeks to regulate a significant
portion of the American economy or require billions of dollars in spending by
private persons or entities”; and (3) when an agency “seeks to intrude into
an area that is the particular domain of state law.” Id. at 743–44 (Gorsuch,
J., concurring) (citations and internal quotation marks omitted); see also Texas
v. Nuclear Regul. Comm’n,
78 F.4th 827, 844 (5th Cir. 2023) (applying the
major questions doctrine because of the political significance of the issue).
But even once triggered, whether the doctrine is one interpretative
tool among many or a clear-statement rule is the subject of ongoing debate. 2
We need not opine on that heady question because, as the district court ably
put it, this case neither is one of vast political or economic significance under
Supreme Court or Fifth Circuit precedent nor intrudes into an area that is
the particular domain of state law.
While no case has set the threshold for “economic significance,” the
recent cases applying the doctrine based on economic significance have
involved hundreds of billions of dollars of impact. See, e.g., Nebraska, 143 S.
Ct. at 2362 ($430 billion); West Virginia, 597 U.S. at 715 ($1 trillion by 2040).
Here, the impact of the Rule is roughly $472 million in the first year,
including both the costs of implementing the Rule and the transfers from
employers to employees. While the Supreme Court’s recent decisions by no
means set the lower bound of economic significance, we think the gap
_____________________
2
Compare Biden v. Nebraska, 143 S. Ct. 2355, 2368–75 (2023) (applying the
doctrine in conjunction with traditional interpretative tools), and
id. at 2378 (Barrett, J.,
concurring) (explaining that the major questions doctrine is a textual tool that emphasizes
context, not a substantive canon), with West Virginia, 597 U.S. at 724–32 (2022) (starting
with the major questions doctrine and arguably treating it as a substantive canon), and
id.
at 735 (Gorsuch, J., concurring) (arguing that the doctrine is a clear-statement rule).
5
Case: 23-50724 Document: 95-1 Page: 6 Date Filed: 09/11/2024
No. 23-50724
between the economic impact in those cases and this case too large to warrant
applying the major questions doctrine here based on economic significance. 3
We must also consider whether DOL seeks to regulate a significant
portion of the American economy. The 2019 Rule removes 1.2 million
workers from the Exemption who would otherwise be exempt. 84 Fed. Reg.
51238. Because 1.2 million workers is a small percentage of the overall
workforce, regulating that number of workers does not trigger the major
questions doctrine.
Turning to political significance, even if we assume that labor relations
are a politically controversial topic, whether to use salary level to determine
which employees should be exempt from various FLSA protections is not in
line with the types of issues that have been considered politically contentious
enough to trigger the doctrine. E.g., West Virginia, 597 U.S. at 729–30 (how
much coal-based energy generation the country should engage in); see also
Texas, 78 F.4th at 844 (how to store nuclear waste). Nor is this a case in
which the agency “newly uncover[s] [power that] conveniently enable[s] it
to enact a program that . . . Congress considered and rejected multiple
times.” West Virginia, 597 U.S. at 731 (internal quotation marks omitted).
Finally, the Supreme Court’s major-questions analysis turns in part
on whether the agency has previously claimed the authority at issue. West
_____________________
3
Mayfield urges us to look to the economic impact that could result from the
broadest possible rule that is consistent with DOL’s asserted authority rather than the
impact of the rule that DOL actually promulgated. While the Supreme Court has
occasionally considered the potential impact of the authority asserted, see, e.g., Gonzalez v.
Oregon, 546 U.S. 243, 268 (2006) (considering other decisions the Attorney General could
make based on the authority asserted), we think that the Supreme Court’s more recent
cases are a more reliable guide, and those cases look to the promulgated rule, see, e.g., West
Virginia, 597 U.S. at 724–30 (analyzing the impact of the rule in question); Nebraska, 143
S. Ct. at 2372 (same).
6
Case: 23-50724 Document: 95-1 Page: 7 Date Filed: 09/11/2024
No. 23-50724
Virginia, 597 U.S. at 721–23 (providing examples). Here, DOL asserts an
authority that it has asserted continuously since 1938. While a particular
minimum-salary rule could raise issues because of its size, Mayfield’s
argument is that any consideration of salary is improper. That means that
even though the particular salary level in question here is novel, the assertion
of authority to consider salary is not. As the district court explained, this is
not an instance where the agency “discover[s] in a long-extant statute an
unheralded power to regulate ‘a significant portion of the American
economy.’” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 159 (2000)).
III
Having determined that the major questions doctrine does not apply,
we turn to Mayfield’s argument that the 2019 Minimum Salary Rule exceeds
DOL’s statutory authority. In Loper Bright Enterprises v. Raimondo, the
Supreme Court clarified “the unremarkable, yet elemental proposition
reflected in judicial practice dating back to Marbury” that “courts decide
legal questions by applying their own judgment,” even in agency cases. 144
S. Ct. 2244, 2261 (2024). Where, as here, Congress has clearly delegated
discretionary authority to an agency, we discharge our duty by
“independently interpret[ing] the statute and effectuat[ing] the will of
Congress subject to constitutional limits.”
Id. at 2263. This means that we
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.”
Id.
at 2268. Doing so requires using “all relevant interpretive tools” to
determine the “best” reading of a statute; a merely “permissible” reading is
not enough.
Id. at 2266.
7
Case: 23-50724 Document: 95-1 Page: 8 Date Filed: 09/11/2024
No. 23-50724
A
Here, because there is an uncontroverted, explicit delegation of
authority, the question is whether the Rule is within the outer boundaries of
that delegation. See id. at 2268. We start with the text of the explicit
delegation, which gives DOL the authority to “define[] and delimit[]” the
terms of the Exemption.
29 U.S.C. § 213(a)(1). “Define” means to “set
forth or explain what a word (or expression) means.” Define, Oxford English
Dictionary (3d ed. 2015); see also Define, Black’s Law Dictionary (12th ed.
2024). “Delimit” means to “mark or determine (a limit or boundary)” of
something. Delimit, Oxford English Dictionary (3d ed. 2015); see also Delimit,
Black’s Law Dictionary (12th ed. 2024).
Promulgating the Minimum Salary Rule can be construed in two ways,
both of which are consistent with DOL’s statutorily conferred authority. By
promulgating the Rule, DOL defines, in part, what it means to work in an
executive, administrative, or professional capacity (namely, to earn at least a
particular amount of money). This tracks the simple fact that a definition can
rely on multiple types of characteristics. For example, the definition of
“bachelor”—an “unmarried man”—uses both gender and marital status.
Bachelor, Oxford English Dictionary (3d ed. 2015). The Minimum Salary
Rule can also be construed as an exercise of the power to delimit the scope of
the Exemption. By promulgating the Rule, DOL sets a limit on what is
otherwise defined by the text of the Exemption. On either construal of what
DOL is doing when it promulgates the Rule, its action is within the scope of
its authority.
B
Mayfield’s arguments to the contrary are unavailing. He contends
that the power to “define and delimit” the terms of the Exemption is only
the power to further specify and enumerate the types of duties that qualify an
8
Case: 23-50724 Document: 95-1 Page: 9 Date Filed: 09/11/2024
No. 23-50724
employee for the Exemption. On Mayfield’s view, the Minimum Salary Rule
arbitrarily imposes a new requirement that lacks a textual basis because the
statute only speaks of duties. Any classification based on a characteristic
other than duties, then, would exceed DOL’s authority. In support of this
view, Mayfield points to the fact that many FLSA exemptions are defined in
terms of job duties and that other exemptions explicitly reference salary level,
demonstrating that Congress knows how to impose such a requirement when
it wants one.
We are not persuaded. Using salary level as a criterion for EAP status
has a far stronger textual foundation than Mayfield acknowledges. As DOL
correctly points out, the terms in the EAP Exemption, particularly
“executive,” connote a particular status or level for which salary may be a
reasonable proxy. 4 Indeed, the EAP Exemption is also frequently referred to
as the “White Collar Exemption.” 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. Cf. Hewitt v. Helix Energy Sols. Grp., Inc., 15 F.4th
289, 305 (5th Cir. 2021) (Jones, J., dissenting) (faulting an interpretation of a
regulation implementing the EAP Exemption that allowed highly
compensated employees to receive overtime because it was a poor fit with “a
statute designed to elevate the workingman”), aff’d,
598 U.S. 39 (2023).
Mayfield’s argument nevertheless raises an important point: adding
an additional characteristic is consistent with the power to define and delimit,
_____________________
4
Mayfield appeals to the definitions of “executive,” “administrative,” and
“professional,” which he argues focus entirely on job duties and functions. In doing so,
Mayfield ignores that the terms connote things not included in their definitions and that
the degree of overlap between salary and the chosen terms makes one a reliable proxy for
the other.
9
Case: 23-50724 Document: 95-1 Page: 10 Date Filed: 09/11/2024
No. 23-50724
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.
The same is true if one characterizes the Rule as DOL implementing
a proxy to determine who falls within the Exemption. Using salary as a proxy
for EAP status is a permissible choice because, as we have explained, the link
between the job duties identified and salary is strong. That does not mean,
however, that use of a proxy characteristic will always be a permissible
exercise of the power to define and delimit. If the proxy characteristic
frequently yields different results than the characteristic Congress initially
chose, then use of the proxy is not so much defining and delimiting the
original statutory terms as replacing them. That is not the case here.
Mayfield also argues that Congress knows how to impose a salary
requirement when it wants to. For example, application of the Baseball
Exemption turns, in part, on whether the player surpasses a minimum weekly
salary. 29 U.S.C. § 213(a)(19). That argument is inapposite. True, we
“generally presume” that Congress acted “intentionally and purposely”
when it “includes particular language in one section of a statute but omits it
in another.” Rodriguez-Avalos v. Holder,
788 F.3d 444, 451 (5th Cir. 2015)
(quoting Brown v. Gardner,
513 U.S. 115, 120 (1994)). Here, however, the
question is not whether the Exemption’s terms should be interpreted to
contain a salary requirement. The question is whether the power conferred
by the explicit delegation to “define[] and delimit[]” the terms of the statute
allows DOL to impose a salary requirement. Even if Congress acted
intentionally by omitting a salary requirement from the EAP Exemption, that
does not mean that the power it conferred excludes the option of imposing
the requirement.
10
Case: 23-50724 Document: 95-1 Page: 11 Date Filed: 09/11/2024
No. 23-50724
C
Finally, a note about Skidmore deference. In Loper Bright, the
Supreme Court explained that “courts may . . . seek aid from the
interpretations of those responsible for implementing particular statutes.”
Loper Bright, 144 S. Ct. at 2262 (citing Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944)). Under Skidmore, the weight given to the agency’s interpretation
“depend[s] upon the thoroughness evident in its consideration, the validity
of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade.”
Id. at 2259 (quoting
Skidmore,
323 U.S. at 140). “The last factor, persuasiveness, is the
touchstone in determining how much to defer to an agency interpretation.”
Midship Pipeline, Co., LLC v. FERC,
45 F.4th 867, 875 (5th Cir. 2022); see
also Rest. L. Ctr. v. DOL, --- F.4th ---,
2024 WL 3911308, at *8 (5th Cir.
2024).
One might ask what work Skidmore deference can do given the
Supreme Court’s statements that (1) statutes have a “best reading . . . the
reading the court would have reached if no agency were involved,” and
(2) “[i]n the business of statutory interpretation, if it is not the best, it is not
permissible.” Loper Bright, 144 S. Ct. at 2266 (internal quotation marks
omitted). Taking these statements together, it seems that either the agency’s
interpretation is the best interpretation (in which case no deference is
needed) or the agency’s interpretation is not best (in which case it lacks
persuasive force and is not owed deference). We need not address that issue
here because DOL’s interpretation of the statute is “best” based on
traditional tools of statutory interpretation and without reliance on deference
of any kind. We note, however, that if Skidmore deference does any work, it
applies here. DOL has consistently issued minimum salary rules for over
11
Case: 23-50724 Document: 95-1 Page: 12 Date Filed: 09/11/2024
No. 23-50724
eighty years. 5 Though the specific dollar value required has varied, DOL’s
position that it has the authority to promulgate such a rule has been
consistent. Furthermore, it began doing so immediately after the FLSA was
passed. And for those who subscribe to legislative acquiescence, Congress
has amended the FLSA numerous times without modifying, foreclosing, or
otherwise questioning the Minimum Salary Rule. 6
We join four of our sister circuits in holding that DOL has the
statutory authority to promulgate the Minimum Salary Rule. Prakash v. Am.
Univ., 727 F.2d 1174, 1177–78 (D.C. Cir. 1984); Fanelli v. U.S. Gypsum Co.,
141 F.2d 216, 218 (2d Cir. 1944); Walling v. Morris,
155 F.2d 832, 836 (6th
Cir. 1946), vacated on other grounds sub nom. Morris v. McComb,
332 U.S. 422
(1947); Walling v. Yeakley,
140 F.2d 830, 832–33 (10th Cir. 1944).
IV
Finally, we consider Mayfield’s argument that the EAP Exemption,
when interpreted to grant DOL the authority to issue the 2019 Minimum
Salary Rule, violates the nondelegation doctrine because it lacks an
intelligible principle to guide DOL’s power to define and delimit the EAP
Exemption’s terms. As currently constituted, 7 the intelligible-principle test
_____________________
5
3 Fed. Reg. 2518 (Oct. 20, 1938);
5 Fed. Reg. 4077 (Oct. 15, 1940);
14 Fed. Reg.
7705 (Dec. 24, 1949);
23 Fed. Reg. 8962 (Nov. 18, 1958);
28 Fed. Reg. 9505 (Aug. 30, 1963);
35 Fed. Reg. 883 (Jan. 22, 1970);
40 Fed. Reg. 7091 (Feb. 19, 1975);
69 Fed. Reg. 22,122
(Apr. 23, 2004);
81 Fed. Reg. 32,391 (May 23, 2016).
6
Fair Labor Standards Amendments of 1949, Pub. L. No. 81-393, § 16(c),
63 Stat.
910, 920; Fair Labor Standards Amendments of 1961,
Pub. L. No. 87-30, sec. 9, § 13(a)-(b),
75 Stat. 65, 71-74; Fair Labor Standards Amendments of 1966,
Pub. L. No. 89-601, sec. 214,
§ 13(a)(1),
80 Stat. 830, 837; Act of Nov. 15 1990,
Pub. L. No. 101-583, § 2,
104 Stat. 2871,
2871.
7
The current formulation of the nondelegation doctrine has been called into
serious question. In Gundy v. United States, three justices wrote that the intelligible-principle test, as applied by the Court, “has no basis in the original meaning of the
12
Case: 23-50724 Document: 95-1 Page: 13 Date Filed: 09/11/2024
No. 23-50724
requires Congress to set out guidance that “delineates the general policy, the
public agency which is to apply it, and the boundaries of this delegated
authority.” Mistretta v. United States, 488 U.S. 361, 372–73 (1989) (quoting
Am. Power & Light Co. v. SEC,
329 U.S. 90, 105 (1946)). As the Supreme
Court recently explained, “[t]hose standards . . . are not demanding,” and
the Supreme Court has only twice found an excessive delegation of power,
doing so in each case because “Congress had failed to articulate any policy or
standard to confine discretion.” Gundy, 588 U.S. at 146 (internal quotations
omitted); see also Jarkesy v. SEC,
34 F.4th 446, 462 (5th Cir. 2022) (holding
a delegation unconstitutional because Congress provided “no guidance
whatsoever”), aff’d
144 S. Ct. 2117 (2024). Of course, “that does not mean
we must rubber-stamp all delegations of legislative power.” Consumers’ Rsch.
v. FCC,
109 F.4th 743, 759 (5th Cir. 2024) (alterations adopted) (quoting Big
Time Vapes, Inc. v. FDA,
963 F.3d 436, 443 (5th Cir. 2020)). To do so would
be to “shy away from our judicial duty to invalidate unconstitutional
delegations.”
Id. (alterations adopted) (quoting Big Time Vapes,
963 F.3d at
443)).
Here, as the district court correctly noted, there are at least two
principles that guide and confine the authority delegated to DOL: the
_____________________
Constitution, in history, or even in the decision from which it was plucked.” 588 U.S. 128,
164 (2019) (Gorsuch, J., joined by Roberts, C.J., and Thomas, J., dissenting). Justice Alito
noted in his concurrence that he agreed that the Court should reconsider the doctrine, id.
at 148–49 (Alito, J., concurring), and Justice Kavanaugh, who had not joined the Court
when Gundy was decided, indicated in a subsequent writing that he too would reconsider
the doctrine, Paul v. United States,
140 S. Ct. 342 (2019) (Kavanaugh, J., respecting the
denial of certiorari). On the Gundy dissent’s view, the test should be whether the statute
only assigns the executive fact-finding duties, makes clear the facts to be considered and
the criteria against which to evaluate them, and leaves all policy judgments to Congress,
not the executive branch. Gundy, 588 U.S. at 166 (Gorsuch, J., dissenting). Of course, it is
not our prerogative to decide cases based on what the Supreme Court might do. Agostini v.
Felton,
521 U.S. 203, 237 (1997).
13
Case: 23-50724 Document: 95-1 Page: 14 Date Filed: 09/11/2024
No. 23-50724
FLSA’s statutory directive to eliminate substandard labor conditions that are
detrimental to the health, efficiency, and general wellbeing of workers, 29
U.S.C. § 202(a), (b), and the text of the Exemption itself,
id. § 213(a)(1). The
guidance provided by these provisions is admittedly not straightforward, and
the boundaries it delineates are neither clear nor uncontroversial. But as the
Supreme Court has said, the existing standard is not demanding. Gundy, 588
U.S. at 146. Under that standard, both the FLSA’s purpose and the text of
the Exemption itself provide at least some guidance for how DOL can
exercise its authority. Therefore, they are each independently sufficient to
satisfy the nondelegation doctrine’s requirements.
True, the Minimum Salary Rule determines which workers are
protected by the FLSA. By contrast, the FLSA’s purpose speaks to what
workers should be protected from. But it nevertheless provides guidance.
DOL can look to whether a particular group of workers is subject to the very
problems the Act seeks to remedy to determine whether the Exemption
should be clarified to include or exclude that group of workers. 8 Cf. Hewitt,
15 F.4th at 305 (Jones, J., dissenting). DOL is also constrained by the
qualification that the FLSA should improve working conditions “without
substantially curtailing employment or earning power.”
29 U.S.C. § 202(b).
So while the FLSA’s purpose speaks to what workers should be protected
from, it nevertheless guides and limits DOL’s authority to enact a rule
determining which workers require protection.
_____________________
8
The ability to effectuate the FLSA’s purpose by determining which workers are
and are not exempt from its protections may seem like a broad grant of authority, but it fits
comfortably within a long line of cases blessing similarly broad intelligible principles that
entrust the agency with effectuating a statutory purpose. See Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 474–75 (2001) (collecting examples).
14
Case: 23-50724 Document: 95-1 Page: 15 Date Filed: 09/11/2024
No. 23-50724
So too with the text of the Exemption itself. The words “executive,”
“administrative,” and “professional” each have meaning. That meaning
both guides and limits DOL’s power to “define[] and delimit[]” them.
DOL can enact rules that clarify the meaning of those terms or, as in the case
of the Minimum Salary Rule, impose some limitations on their scope. By
contrast, DOL cannot enact rules that replace or swallow the meaning those
terms have. It is true that the Exemption’s text does not provide a precise
line for what is permissible and what is not. As we have discussed, a rule that
uses a proxy to determine whether something falls within the Exemption
poses the difficult question of how accurate the proxy must be to be
permissible. And a rule imposing a new characteristic raises the question of
whether that characteristic is sufficiently connected to the existing definition.
But an intelligible principle is a guide, not a definitive guide, to what can and
cannot be done. As such, the Exemption itself provides an intelligible
principle for the power to define and delimit its terms.
The lack of clarity in both intelligible principles raises reasonable
concerns, but they are concerns that are only legally relevant under a test that
has been floated but never grounded in law. To require more is to ask for a
level of specificity that the law does not currently demand. Thus, we join two
of our sister circuits in finding that, under the existing test, DOL’s authority
to define and delimit the terms of the EAP Exemption is guided by an
intelligible principle. See Fanelli, 141 F.2d at 218; Walling, 140 F.2d at 832–
33.
…
Because setting a minimum salary level for the EAP Exemption is
within DOL’s power to define and delimit the terms of that Exemption and
because that power is guided by the FLSA’s purpose and the text of the
exemption itself, we AFFIRM.
15
