Back in January of this year, I wrote about an abnormally testy exchange between two Fifth Circuit judges regarding whether a “tool pusher” is entitled to overtime pay under the Fair Labor Standards Act (FLSA).  That post can be found here.  But in short, the majority opinion, authored by Judge Ho, held that while this tool pusher (Hewitt) was highly compensated, his pay structure was not sufficiently guaranteed or certain to exempt him from the FLSA’s overtime provisions.  In a terse dissent, Judge Weiner indicated that the majority opinion did not take into account the realities of the oil patch and Hewitt should have clearly been ineligible for overtime pay.  He further stated that the majority opinion could have “devastating effects on all employers, especially in the oil and gas arena.”

A majority of Judge Weiner’s colleagues responded to his plea and agreed to rehear the case en banc (before the entire Fifth Circuit).  Oral argument was held on May 25, 2021, and a decision was finally rendered on September 9, 2021.  See Hewitt v. Helix Energy Solutions Grp., No. 19-20023 (5th Cir. Sept. 9, 2021) (en banc).  By a margin of 12-5, the entire Fifth Circuit held that Hewitt was not exempt from the FLSA’s overtime provisions.

Judge Ho again authored the majority opinion.  Critical to the opinion was the fact that Hewitt was paid on a daily basis, instead of weekly, monthly, or annual basis, and that he had no minimum weekly guarantee.  Under the majority’s reading of the FLSA regulations, this foreclosed Helix’s arguments that Hewitt was exempt from overtime pay, even though he was highly compensated.  As Judge Ho often does, in addition to authoring the majority opinion he submitted a separate concurring opinion addressing some additional arguments raised by amici.  With a few more barbs thrown at Judge Wiener, Judge Ho dismissed contrary arguments as antithetical to the text of the law and regulations.

Judge Jones, writing for the dissenting judges, accused the majority of downplaying facts about Hewitt’s compensation as a tool pusher.  For instance, Hewitt received over $200,000—more than twice the required amount to be considered a highly compensated employee exempt from overtime.  Lastly, Judge Wiener wrote in dissent, once again sounding the alarm that he believes the majority’s decision ignores Supreme Court precedent and endangers the vital oil industry.

The Fifth Circuit’s decision is no doubt one of significant import to the region.  Interestingly, the judges did not divide along perceived ideological lines: both the majority and dissent included judges appointed by Republican and Democratic Presidents.  This may be the end of the road for Helix and Hewitt, unless the Supreme Court decides to weigh in.  We shall see if this case piques the Justices’ interest.  Stay tuned.