By Michael Homans
December 2024
This time of year, like an angel, we come bearing tidings of comfort and joy to our friends and clients who may feel overwhelmed or past-due on holiday chores. Rejoice, dear readers, the courts have confirmed that procrastination[1] can be a very wise thing!
Why do we say that? Because of three recent decisions that have revealed the wisdom of being patient and waiting to act on employment and legal issues until the need to act is certain. In the words of the Tao Te Ching: “Do you have the patience to wait until the mud settles and the water is clear?”
Procrastinator Win No. 1 came in late August, when a Texas court blocked the Federal Trade Commission’s proposed ban on most noncompetition covenants nationwide, effective in early September. As the ELU crackerjack staff predicted in our May 2024 Update, this was an unprecedented extension of federal executive branch power over a province generally governed by state law. We do not expect any effort to resurrect this pro-employee provision under the Trump Administration. Those who over-planned for the ban may have wasted time and energy that they could have used generating revenues for their business — or just kicking back and enjoying the summer.
Procrastinator Win No. 2 came November 15, when another Texas court struck down the U.S. Department of Labor’s Final Rule that would have increased the mandatory minimum salary to be exempt from overtime pay to $1,128 per week (or about $59,000/year), effective January 1, 2025. The court held that this was another over-reach by a federal agency, returning the Fair Labor Standards Act minimum salary level for most exempt positions to $35,568 annually ($684 per week). That’s a huge difference.
And Procrastinator Win No. 3 came on December 3, when yet another federal judge in Texas (incredibly insightful advice from the Update — if you want to challenge a federal law or action, take your shot in the Lonestar State) issued a sweeping, nationwide injunction against the enforcement of the Corporate Transparency Act (CTA). The CTA had mandated that by January 1, 2025, more than 32 million small businesses file a Beneficial Ownership Information (BOI) Report with the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN), disclosing highly confidential information in the name of national security — and often while paying a lawyer or accountant fee for the privilege.
We cannot always promise that putting off until tomorrow what can be done today will be rewarded, but there is wisdom in not spending too much time and money anticipating what the law will be (e.g., reading the tea leaves about how the Supreme Court will rule on an issue) or prematurely launching a change to a company policy or practice based on a proposed administrative rule or decree that has not yet taken effect. Planning is a good thing, but timing is everything. Be patient, be careful, and live in the present.
Speaking of presents, there is still plenty of time to do that holiday shopping. Christmas and Hannukah are not until December 25th this year!
[1] Helpfully, Merriam-Webster dictionary provides the etymology of this maligned word, which is formed from the Latin prefix pro-, meaning “forward,” and crastinus, “of tomorrow.” So, procrastinators are not doing a bad thing — they are just saving tomorrow’s business for tomorrow.
Michael Homans is an employment lawyer and litigator based in Philadelphia and Wayne, Pennsylvania. He can be reached at mhomans@homanspeck.com or 215-419-7477.
