United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50724

____________

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 

United States Court of Appeals

Fifth Circuit

FILED

September 11, 2024

Lyle W. Cayce

Clerk

Case: 23-50724 Document: 95-1 Page: 1 Date Filed: 09/11/2024
No. 23-50724

2

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).

Case: 23-50724 Document: 95-1 Page: 2 Date Filed: 09/11/2024
No. 23-50724

3

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.

Case: 23-50724 Document: 95-1 Page: 3 Date Filed: 09/11/2024
No. 23-50724

4

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).

Case: 23-50724 Document: 95-1 Page: 4 Date Filed: 09/11/2024
No. 23-50724

5

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).

Case: 23-50724 Document: 95-1 Page: 5 Date Filed: 09/11/2024
No. 23-50724

6

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).

Case: 23-50724 Document: 95-1 Page: 6 Date Filed: 09/11/2024
No. 23-50724

7

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.

Case: 23-50724 Document: 95-1 Page: 7 Date Filed: 09/11/2024
No. 23-50724

8

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 

Case: 23-50724 Document: 95-1 Page: 8 Date Filed: 09/11/2024
No. 23-50724

9

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.

Case: 23-50724 Document: 95-1 Page: 9 Date Filed: 09/11/2024
No. 23-50724

10

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. 

Case: 23-50724 Document: 95-1 Page: 10 Date Filed: 09/11/2024
No. 23-50724

11

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 

Case: 23-50724 Document: 95-1 Page: 11 Date Filed: 09/11/2024
No. 23-50724

12

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 intelligibleprinciple test, as applied by the Court, “has no basis in the original meaning of the 

Case: 23-50724 Document: 95-1 Page: 12 Date Filed: 09/11/2024
No. 23-50724

13

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).

Case: 23-50724 Document: 95-1 Page: 13 Date Filed: 09/11/2024
No. 23-50724

14

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).

Case: 23-50724 Document: 95-1 Page: 14 Date Filed: 09/11/2024
No. 23-50724

15

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.

Case: 23-50724 Document: 95-1 Page: 15 Date Filed: 09/11/2024