Amicus Curiae Brief — Helix Energy Solutions Group, Inc., et al., Petitioners v. Michael J. Hewitt

Supreme Court briefJul 15, 2022

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No. 21-984

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------HELIX ENERGY SOLUTIONS

GROUP, INC.; HELIX WELL OPS, INC.,

Petitioners,

MICHAEL J. HEWITT,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF THE TEXAS OIL AND

GAS ASSOCIATION, INC. AND THE

AMERICAN PETROLEUM INSTITUTE AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------DAVID B. JORDAN

Counsel of Record

KELCY L. PALMER

PAIGE A. CANTRELL

ALLISON C. WILLIAMS

LITTLER MENDELSON, PC

1301 McKinney Street

Suite 1900

Houston, TX 77010

(713) 951-9400

djordan@littler.com

CORY POMEROY

TEXAS OIL & GAS ASSOCIATION

304 West 34th Street

Austin, TX 78701

(512) 478-6631

COLE W. RAMSEY

AMERICAN PETROLEUM INSTITUTE

200 Massachusetts Ave. NW

Suite 1100

Washington, DC 20001

(202) 682-8000

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...............

SUMMARY OF ARGUMENT ....................

ARGUMENT ..............................................

1. The Industry has a Century-Long

History of Using Textually-Compliant

“Day Rate” Guarantees .......................

2. The Reasonable Relationship Test Does

Not Apply to the HCE ......................... 13

3. The Fifth Circuit Majority Opinion Inappropriately Complicates the HCE

Analysis ............................................... 21

4. Consultants’ Guarantees Are the Result of Bargaining by Skilled Professionals and Are Necessitated by the

Unpredictable Nature of Work in the

Oil and Natural Gas Industry ............. 25

CONCLUSION .......................................... 30

TABLE OF AUTHORITIES

Page

CASES

Aaron v. DC International,

3:18cv44 (S.D.Tex. Feb. 14, 2018) ...........................12

Acs v. Detroit Edison Co.,

444 F.3d 763 (6th Cir. 2006) ....................................29

Aerotek Inc. v. Josephson Dunlap LLP,

DC-20-06195 (Apr. 29, 2020) .....................................9

Aguilar v. DTE Energy Company,

2:20cv11451 (E.D.Mich. June 4, 2020) ...................10

Altenhofen v. Southern Star

Central Gas Pipeline Inc.,

4:20cv30 (W.D.Ky. Feb. 24, 2020) ............................10

Anani v. CVS RX Servs., Inc.,

730 F.3d 146 (2d Cir. 2013) ......................... 14, 24, 28

Applegate v. Buckeye Partners LP,

2:21cv791 (W.D.Pa. June 16, 2021) .........................10

Bales v. Crestwood Midstream Partners LP,

4:20cv2654 (S.D.Tex. July 28, 2020) .......................11

Bernstein v. Buckeye, Inc.,

18-CV-097-DC, 2019 WL 2563841

(W.D.Tex. Apr. 24, 2019) .................................... 12, 23

Bone v. XTO Energy Inc.,

2:20-cv-0069 (D.N.M. July 14, 2020) .......................10

Boudreaux v. Schlumberger Technology Corp.,

6:14cv2267 (W.D.La. July 8, 2014) ..........................11

Boyd v. Spectra Energy Operating Company LLC,

7:16cv6902 (S.D.N.Y. Sept. 1, 2016) ........................10

iii

TABLE OF AUTHORITIES—Continued

Page

Brock v. On Shore Quality Control Specialists, Inc.,

No. CIV. A-84-CA-603, 1987 WL 31308

(W.D.Tex. Sept. 29, 1987) remanded from

811 F.2d 282 (5th Cir. 1987) ................................ 9, 29

Callaway v. Marathon Oil Co.,

5:20cv863 (W.D.Tex. July 24, 2020) ........................11

Carter v. All American Oilfield, LLC,

No. 3:21-cv-00007-JMK (D. Alaska Mar. 4,

2021) ........................................................................23

Casarotto v. Expl. Drilling, Inc.,

15-41-BLG-SPW-CSO, 2015 WL 8780050

(D.Mont. Dec. 15, 2015) ...........................................11

Cator v. DXP Enterprises, Inc.,

CV SA-15-CA-179-FB, 2016 WL 11580735

(W.D.Tex. May 19, 2016) .........................................12

Chicca v. St. Luke’s Episcopal Health Sys.,

858 F. Supp. 2d 777 (S.D.Tex. 2012) .......................20

Chisum v. Callon Petroleum Co.,

4:20cv51 (W.D.Tex. July 10, 2020) ..........................11

Christopher v. Smithkline Beechum Corp.,

132 S. Ct. 2156 (2012) ...............................................8

Coleman v. System One Holdings LLC,

2:21cv1331 (W.D.Pa. Oct. 5, 2021) ..........................10

Cottrill v. MDM Services Corporation,

8:21cv817 (C.D.Cal. May 3, 2021) ...........................10

Cox v. Oasis Petroleum LLC,

4:20cv2903 (S.D.Tex. Aug. 18, 2020) .......................11

TABLE OF AUTHORITIES—Continued

Page

Cruz v. Conocophillips,

208 F. Supp. 3d 811 (S.D.Tex. 2016) .......................12

Curry v. FIS Operations LLC,

2:20cv215 (S.D.Tex. Aug. 25, 2020) .........................11

Curtis v. Houston Inspection Field Services LLC,

4:20cv3515 (S.D.Tex. Oct. 14, 2020)........................11

De Leon v. Northern Natural Gas Co.,

7:20cv179 (W.D.Tex. July 24, 2020) ........................11

DeFoor v. Sun Drilling Products Corp.,

4:15cv701 (S.D.Tex. Mar. 16, 2015) .........................12

Diaz v. Precision Well Logging Inc.,

4:19cv4876 (S.D.Tex. Dec. 16, 2019) .......................12

Doucet v. Boardwalk Pipelines LP,

4:20cv1793 (S.D.Tex. May 22, 2020) .......................12

Dunne v. Computerized Mudlogging Services LLC,

4:15cv692 (N.D.Ohio Apr. 8, 2015) ..........................11

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ...................................................6

Escribano v. Travis Cty., Texas,

947 F.3d 265 (5th Cir. 2020) ......................................3

Fairchild v. The Williams Companies Inc.,

2:19cv1465 (W.D.Pa. Nov. 8, 2019) ..........................10

Faludi v. U.S. Shale Sols., LLC,

950 F.3d 269 (5th Cir. 2020) ....................................14

Faludi v. U.S. Shale Sols., LLC,

No. 17-20808, 2019 WL 3940878

(5th Cir. Aug. 21, 2019) ...........................................27

TABLE OF AUTHORITIES—Continued

Page

Fenley v. Wood Grp. Mustang, Inc.,

325 F.R.D. 232 (S.D.Ohio 2018) ..............................28

Finley v. Sanchez Oil Gas Corporation,

4:22cv129 (S.D.Tex. Jan. 13, 2022) .........................11

Gamboa v. XTO Energy Inc.,

5:21cv387 (W.D.Tex. Apr. 16, 2021) .........................11

Ganci v. MBF Inspection Servs., Inc.,

323 F.R.D. 249 (S.D.Ohio 2017) ..............................28

Garrett v. Salt Creek Midstream LLC,

4:21cv11 (W.D.Tex. Feb. 19, 2021) ..........................11

Gleason v. MVCI Energy Services Inc.,

1:17cv204 (D.N.M. Feb. 10, 2017) ...........................10

Gray v. Powers,

673 F.3d 352 (5th Cir. 2012) ....................................20

Grice v. Range Resources Corporation,

3:18cv269 (S.D.Tex. Sept. 11, 2018) ........................12

Guilbeau v. Schlumberger Technology Corp.,

5:21cv142 (W.D.Tex. Feb. 12, 2021) ........................11

Gulf Oil Corp. v. Wright,

236 F.2d 46 (5th Cir. 1956) ........................................7

Gutierrez v. Drill Cuttings Disposal Co., L.L.C.,

319 F. Supp. 3d 856 (W.D.Tex. 2018) ................ 12, 23

Hamrick v. Enbridge Inc.,

4:20cv3647 (S.D.Tex. Oct. 23, 2020)........................11

Hardin v. The Texian Group Inc.,

4:22cv111 (S.D.Tex. Jan. 12, 2022) .........................11

TABLE OF AUTHORITIES—Continued

Page

Hebert v. Chesapeake Energy Corporation, Inc.,

2:17-cv-00852-GCS-KAJ

(S.D.Ohio Sept. 28, 2017) ........................................10

Herbert v. MudTech Services LP,

2:15cv933 (W.D.Pa. July 17, 2015) ..........................11

Hester v. Phillips 66 Co.,

18-CV-1078, 2019 WL 1930271

(S.D.Tex. Apr. 30, 2019) ...........................................12

Hewitt v. Helix Energy Sols. Grp., Inc.,

15 F.4th 289 (5th Cir. 2021) (en banc) .............. 22, 27

Hewitt v. Helix Energy Sols. Grp., Inc.,

15 F.4th 289 (5th Cir. 2021) (Jones, J.,

dissenting) ....................................................... passim

Hinkle v. Phillips 66 Co.,

4:20cv22 (W.D.Tex. Apr. 1, 2020) .............................12

Hoeflein v. Crescent Drilling & Prod., Inc.,

No. SA-19-CV-01194-FB

(W.D.Tex. Jan. 17, 2020) ..........................................23

Huggins v. Boardwalk Pipelines LP,

4:21cv2273 (S.D.Tex. July 14, 2021) .......................11

Hughes v. Gulf Interstate Field Servs., Inc.,

878 F.3d 183 (6th Cir. 2017) .................... 5, 14, 20, 28

Hughes v. Gulf Interstate Field Servs., Inc.,

No. 2:14-cv-000432, 2016 WL 4197596

(S.D.Ohio Aug. 3, 2016), modified on clarification,

2016 WL 10592321 (S.D.Ohio Sept. 6, 2016)............5

vii

TABLE OF AUTHORITIES—Continued

Page

Hurst Employers Cas. Co., Intervener v.

Gulf Oil Corp.,

251 F.2d 836 (5th Cir. 1958) ......................................7

Hutchings v. XTO Energy Inc.,

7:20-cv-00094 (W.D.Tex. Apr. 16, 2020) ..................12

Isgett v. XTO Energy Inc.,

4:20cv32 (W.D.Tex. Apr. 30, 2020) ...........................12

Jones v. Solaris Water Midstream LLC,

1:21cv567 (D.N.M. June 18, 2021) ..........................10

Kee v. Parnell Consultants Inc.,

1:22cv48 (W.D.Tex. Jan. 18, 2022) ..........................11

Kennedy v. Turbo Drill Industries Inc.,

7:20cv251 (W.D.Tex. Oct. 27, 2020) .........................11

Kole v. Cleveland Integrity Services Inc.,

5:18cv1803 (N.D.Ohio Aug. 6, 2018) .......................10

LeBlanc v. Halliburton Co.,

17-CV-0718, 2018 WL 3999567

(D.N.M. Aug. 21, 2018) ............................................10

Lee v. Schlumberger Technology Corp.,

2:21cv493 (D.N.M. May 28, 2021) ...........................10

Litz v. Saint Consulting Grp., Inc.,

772 F.3d 1 (1st Cir. 2014) ............................ 14, 24, 28

Louvierre v. Cherokee Contractors Corp.,

1:22cv173 (D.N.M. Mar. 7, 2022) .............................10

Lucas v. Crescent Directional Drilling LP,

4:14cv1635 (S.D.Tex. June 11, 2014) ......................12

viii

TABLE OF AUTHORITIES—Continued

Page

Lyman v. Gas Gathering Specialists Inc.,

0:21cv2386 (D.Minn. Oct. 27, 2021) ........................10

Maillet v. Centennial Resource Development Inc.,

4:20cv28 (W.D.Tex. Apr. 20, 2020) ...........................12

Marzuq v. Cadete Enterprises, Inc.,

807 F.3d 431 (1st Cir. 2015) ....................................30

McAfee v. Pioneer Natural Resources Company,

4:16cv3298 (S.D.Tex. Nov. 8, 2016) .........................12

McCord v. Liberty Energy Services LLC,

7:20cv2171 (S.D.N.Y. Mar. 11, 2020) .......................10

McCulloch v. Baker Hughes Inc.,

1:16cv157 (E.D.Cal. Feb. 3, 2016) ...........................11

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) ...............................................8

McGrew v. Quinn’s Rental Servs. LLC,

16-CV-543, 2016 WL 3974836

(S.D.Tex. July 25, 2016) ..........................................12

McLelland v. Carrizo Oil & Gas, Inc.,

4:18-cv-04214 (S.D.Tex. Nov. 6, 2018) .....................12

Meyer v. Phoenix Technology Services Inc.,

4:14cv1490 (S.D.Tex. May 28, 2014) .......................13

Mitchell v. Kestrel Field Services Inc.,

4:21cv3100 (S.D.Tex., Sept. 23, 2021) .....................11

Murphy v. Multi-Shot LLC,

4:14cv1464 (S.D.Tex. May 23, 2014) .......................13

TABLE OF AUTHORITIES—Continued

Page

Neighbors v. True Performance

Directional Drilling LLC,

2:21cv882 (D.N.M. Sept. 8, 2021) ............................10

Oates v. Kinder Morgan Energy Partners, L.P.,

5:19-cv-01171-SLP (W.D.Okla. Dec. 18, 2019) ........10

Orton v. Johnny’s Lunch Franchise, LLC,

668 F.3d 843 (6th Cir. 2012) ....................................20

Pardue v. 3B Inspection LLC,

4:21cv20 (W.D.Tex. Apr. 7, 2021) .............................11

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019) (No. 18-389),

2019 WL 1672465 .................................................. 7, 8

Parrish v. Premier Directional Drilling, L.P.,

917 F.3d 369 (5th Cir. 2019) .......................... 5, 22, 28

Prejean v. O’Brien’s Response Management Inc.,

2:12cv1045 (E.D.La. Apr. 24, 2012) .........................11

Price v. Devon Energy Corp.,

2:20cv316 (D.N.M. Apr. 8, 2020)..............................10

Price v. Trinity Operating LLC,

4:21cv3442 (S.D.Tex. Oct. 19, 2021)........................11

Reed v. Enterprise Products Partners LP,

4:22cv116 (S.D.Tex. Jan. 12, 2022) .........................11

Robertson v. Rep Processing LLC,

1:19cv2910 (D.Colo. Oct. 11, 2019) .........................10

Rogers v. 3Bear Energy LLC,

1:21cv376 (D.N.M. Apr. 23, 2021)............................10

TABLE OF AUTHORITIES—Continued

Page

Romero v. Clean Harbors Surface Rentals USA, Inc.,

368 F. Supp. 3d 152 (D.Mass. 2019) ........................10

Roney v. Prime Energy Services LLC,

5:21cv586 (W.D.Tex. June 18, 2021) .......................11

Rosas v. Dark Star Prod. Testing, Inc.,

2:16-CV-140, 2017 WL 8682221

(S.D.Tex. July 31, 2017) ..........................................12

Saltzman v. VON Energy Services LLC,

4:18cv2883 (S.D.Tex. Aug. 20, 2018) .......................12

Sanders v. XTO Energy Inc.,

1:21-cv-01725 (D.Del. Dec. 7, 2021) ........................10

Scott v. Antero Res. Corp.,

No. 17-CV-0693-WJM-SKC, 2021 WL 2012326

(D. Colo. May 20, 2021), appeal filed,

No. 21-1188 (10th Cir. May 21, 2021) ......... 14, 23, 28

Shaffer v. M-I, LLC,

14-CV-2966, 2015 WL 7313415

(S.D.Tex. Nov. 19, 2015)...........................................12

Shirey v. Helix Energy Solutions Group Inc.,

4:17cv2741 (S.D.Tex. Sept. 12, 2017) ................ 12, 16

Shulark v. Ensite USA Inc.,

4:21cv3684 (S.D.Tex. Nov. 9, 2021) .........................11

Sisk v. Energy Inspection Services LLC,

2:21cv1170 (D.N.M. Dec. 8, 2021) ...........................10

Sloane v. Gulf Interstate Field Servs., Inc.,

No. 4:16-CV-01571, 2017 WL 1105236

(M.D.Pa. Mar. 24, 2017)................................... passim

TABLE OF AUTHORITIES—Continued

Page

Snead v. EOG Res., Inc.,

5:16-CV-1134-OLG, 2017 WL 6294875

(W.D.Tex. Feb. 14, 2017) ..........................................12

Songer v. Advanced Building Services LLC,

4:14cv3154 (S.D.Tex. Nov. 5, 2014) .........................12

Stallings v. Antero Res. Corp.,

1:17-CV-01939-RM-NYW, 2018 WL 1250610

(D.Colo. Mar. 12, 2018) ............................................10

Stanley v. Patriot Inspection Services Inc.,

6:20cv283 (W.D.Tex. Apr. 9, 2020) ...........................12

Steve Byrd v. ETX Energy, LLC,

No. 4:20-cv-01622 (S.D.Tex. May 7, 2020) ..............22

Stringer v. McDaniel Technical Services Inc.,

7:19cv32 (W.D.Tex. Feb. 1, 2019) ............................12

Taylor v. Hunt, Guillot, Associates LLC,

1:21cv477 (D.N.M. May 25, 2021) ...........................10

Tipton v. Anadarko Petroleum Corporation,

4:20cv439 (S.D.Tex. Feb. 7, 2020) ...........................12

Tollefson v. Anadarko Petroleum Corp.,

7:20cv168 (W.D.Tex. July 13, 2020) ........................11

W. Virginia v. Env’t Prot. Agency,

No. 20-1530, 2022 WL 2347278

(June 30, 2022) ..........................................................8

Walker v. Pittsburgh Mineral

Environmental Technology Inc.,

2:21cv510 (W.D.Pa. Apr. 15, 2021) ..........................10

Webb v. Quality Integrated Services Inc.,

2:16cv457 (W.D.Pa. Apr. 15, 2016) ..........................10

xii

TABLE OF AUTHORITIES—Continued

Page

Welch v. Jenn Energy Services LLC,

5:20cv59 (S.D.Tex. Apr. 20, 2020)............................12

Wells v. Colonial Compliance Systems Inc.,

3:19cv7810 (N.D.Cal. Nov. 27, 2019) .......................10

West v. Anne Arundel Cnty.,

137 F.3d 752 (4th Cir. 1998) ....................................27

West v. Primexx Energy Partners Ltd.,

7:20cv98 (W.D.Tex. Apr. 20, 2020) ...........................12

York v. RWDY Inc.,

4:15cv3076 (S.D.Tex. Oct. 19, 2015)........................12

Young v. Harvest Midstream Company,

2:21cv226 (S.D.Tex. Sept. 29, 2021) ........................11

Zannikos v. Oil Inspections (U.S.A.), Inc.,

605 F. App’x 349 (5th Cir. 2015) ..............................20

STATUTES

Fair Labor Standards Act (“FLSA”) ................... passim

REGULATIONS

29 C.F.R. § 541.118(a) (1973) ......................................20

29 C.F.R. § 541.214(a) (1986) ........................................9

29 C.F.R. § 541.601 ............................................. passim

29 C.F.R. § 541.601(b)(1) .............................................25

29 C.F.R. § 541.601(b)(2) ....................................... 15, 19

29 C.F.R. § 541.601(c) .................................................19

xiii

TABLE OF AUTHORITIES—Continued

Page

29 C.F.R. § 541.602 ............................................. passim

29 C.F.R. § 541.602(a) ......................................... passim

29 C.F.R. § 541.602(a)(1) .............................................24

29 C.F.R. § 541.602(a)(3) ................................. 15, 19, 23

29 C.F.R. § 541.602(b)(1) .............................................24

29 C.F.R. § 541.604 ............................................. passim

29 C.F.R. § 541.604(b) ......................................... passim

29 C.F.R. § 541.0(b) .....................................................18

29 C.F.R. § 541.605 ......................................... 16, 18, 25

OTHER AUTHORITIES

Diarmuid O’Scannlain, “We Are All Textualists

Now”: The Legacy of Justice Antonin Scalia,

91 ST. JOHN’S L. REV. 303 (2017) ............................21

Nat’l Auto. Dealers Ass’n, Comment Letter on

Proposed Rule Updating Regulations Issued

Under the Fair Labor Standards Act (Sept. 26,

2008 ...........................................................................6

Kenneth I. Takahashi & Donald L. Gautier, A

Brief History of Oil and Gas Exploration in the

Southern San Joaquin Valley of California, in

U.S. Petroleum Systems and Geologic Assessment of Oil and Gas in the San Joaquin Basin

Province, California (Allegra Hosford Scheirer

ed. 2007), https://pubs.usgs.gov/pp/pp1713/03/

pp1713_ch03.pdf .......................................................6

xiv

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Interior, Bureau of Land Mgmt.,

About the BLM Oil and Gas Program, https://

www.blm.gov/programs/energy-and-minerals/

oil-and-gas/about (last visited Feb. 2, 2022) .............7

Transcript of Oral Argument, Parker Drilling

Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881

(2019) (No. 18-389), 2019 WL 1672465 ....................8

Transcript of Oral Argument, McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) (No. 18-9526), 2020 WL

2425717 .....................................................................8

Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside

Sales and Computer Employees, 69 Fed. Reg.

22,121, 22,175 (Apr. 23, 2004) (“2004 Final

Rule”) ............................................................... passim

Proposed Rule Defining and Delimiting the

Exemptions for Executive, Administrative,

Professional, Outside Sales and Computer

Employees, 68 Fed. Reg. 15,559, 15,571 (Mar.

31, 2003) (“2003 NPRM”) ............................ 21, 24, 25

Report and Recommendations on Proposed Revision of Regulations, Part 541 Under the Fair

Labor Standards Act, March 3, 1958, by Harry

S. Kantor, Assistant Administrator, Presiding

Officer (“Kantor Report”) .................................. 21, 22

Pls.’ Mot. Conditional Cert. Ct. Auth. Notice at

Exs. A–B, Hoeflein v. Crescent Drilling &

Prod., Inc., No. SA-19-CV-01194-FB (W.D.Tex.

Jan. 17, 2020) ..........................................................23

TABLE OF AUTHORITIES—Continued

Page

U.S. Bureau of Lab. Stats., Economic News Release

(Apr. 16, 2021), https://www.bls.gov/news.release/

wkyeng.t05.htm (national pay scale) .....................24

U.S. Bureau of Lab. Stats., Inflation Calculator

https://www.bls.gov/ ..................................................9

U.S. Dep’t of Labor, Wage & Hour Div., Opinion

Letter FLSA2020-2 (Jan. 7, 2020), 2020 WL

122924 .....................................................................26

U.S. Dep’t of Labor, Wage & Hour Div., Opinion

Letter (Sept. 3, 1999), 1999 WL 1788150 ...............27

R.R. Comm’n of Tex., Notice To Operators: Tropical Storm Nicholas (Sept. 13, 2021), https://

www.rrc.texas.gov/announcements/091321-ntotropical-storm-nicholas/ (last visited Feb. 6,

2022) ........................................................................29

U.S. Dep’t of Labor, Wage & Hour Div., Opinion

Letter (July 9, 2003) ................................................29

U.S. Dep’t of Labor, Wage & Hour Div., Coefficient Table for Computing Extra Half-Time

for Overtime, https://www.dol.gov/sites/dolgov/

files/WHD/legacy/files/CoefficientTableWH-134.

pdf (last visited Feb. 6, 2022) ..................................30

Wage and Hour & Pub. Contracts Divs., Dep’t of

Labor, Defining the Terms “Executive” “Administrative” “Professional” “Local Retailing

Capacity” “Outside Salesman” (1949) (“Weiss

Report”) ....................................................... 17, 18, 22

A. INTEREST OF AMICI CURIAE1

This Court’s opinion will have a nationwide, economic impact, given how entwined the Amici’s industry is to both the U.S. economy and the population’s

reliance on oil and natural gas, and the number of

jobs and dollars the upstream, midstream, and downstream sectors represent. The oil and natural gas industry provides thousands of jobs and helps power

day-to-day life for each American. Accordingly, both the

Texas Oil & Gas Association (“TXOGA”) and the American Petroleum Institute (“API”) have joined as amici

curiae to provide input on legal, policy, and practical

considerations in cases affecting the industry.

TXOGA is a statewide trade association representing every facet of the Texas oil and gas industry

including small independents and major producers.

Collectively, the membership of TXOGA produces in

excess of 80 percent of Texas’ crude oil and natural gas,

operates over 80 percent of the state’s refining capacity, and is responsible for the vast majority of the

state’s pipelines. In fiscal year 2021, the oil and natural gas industry employed more than 422,000 Texans

in direct jobs and paid $15.8 billion in state and local

taxes and state royalties, funding Texas schools, roads

and first responders.

Counsel of record for all parties consented to the filing of

the brief in writing. S. Ct. R. 37.3(a). No counsel for any party

authored this brief in whole or in part, and no person or entity

other than amici curiae or their counsel made a monetary contribution intended to fund the brief.

API is a national trade association that represents

all aspects of America’s oil and natural gas industry.

API’s over 600 members, from large integrated companies to smaller independents, come from all segments

of the industry. They are producers, refiners, suppliers,

marketers, pipeline operators, and marine transporters, as well as service and supply companies that support the industry. API calculates that the oil and

natural gas industry supports at least 10.9 million

American jobs. API is also the leading standards-making body worldwide for the oil and natural gas industry, including standards and recommended practices

incorporated or referenced in numerous state and federal regulations.

B. SUMMARY OF ARGUMENT

A day rate can meet the definition of salary under

the Fair Labor Standards Act (“FLSA”), and the Fifth

Circuit’s majority opinion in Helix incorrectly complicates the interpretation of “salary,” and the text of the

Highly Compensated Employee exception (“HCE”) itself. The decision should be overturned in favor of

the plain text and intent of the FLSA, applied for decades to highly-skilled, highly-compensated workers

paid a day rate. The high-compensation guarantees

(i.e., day rates)—paid to oilfield consultants2 in a

Hereafter TXOGA and API will refer to the highly-compensated, highly-skilled oil patch workers at issue in this matter as

“consultants.” Many consultants are contracted as independent

contractors through staffing companies or other third-party

“typical” weekly, biweekly, or monthly check for cumulative days worked—are the product of the significant

bargaining power these highly-skilled, sought-after

consultants leverage with oil and natural gas companies. Such guarantees are precisely a type of compensation method the Department of Labor (“DOL”)

contemplated when drafting the HCE, and further reflect the historic economic balance the industry must

maintain given the particularly unpredictable nature

of oil patch work.

Against this backdrop, the Fifth Circuit’s majority

opinion not only destabilizes the financial foundation

underpinning of the oil and natural gas industry’s exploration and production across the United States, but

also departs from the collective rulings of the other Circuit and district courts which considered whether a

day rate can be a salary. The majority opinion incorrectly complicates the HCE and related DOL regulations, and is an outlier to even another Fifth Circuit

opinion, Escribano v. Travis Cty., Texas, which distilled

the salary basis test to “generally mean[ ] what its label suggests: an employee is paid on a salary basis if

he or she receives the same wage each pay period, regardless of ‘the quality or quantity of the work performed.’ ” 947 F.3d 265, 267 (5th Cir. 2020) (Davis,

Smith, Costa, circuit judges). This is precisely what a

day rate is—a guaranteed dollar amount to be paid to

consultants whether they show up for work on that day

entities, but some consultants are direct employees of oilfield operators, like Respondent Hewitt.

for 20 minutes, or work a common, oil-and-natural-gasindustry hitch of 12 hours. Moreover, for consultants, a

single day rate is well-above the weekly minimum

amount required by the HCE, and the wage payments

are issued on a weekly or less frequent basis.

While “the old adage that ‘if at first you don’t succeed, try again’ does not apply to litigation in federal

court,” the contrary is happening to the oil and natural

gas industry. Sloane v. Gulf Interstate Field Servs., Inc.,

No. 4:16-CV-01571, 2017 WL 1105236, at *1 (M.D.Pa.

Mar. 24, 2017). The industry is held hostage by a barrage of multi-million-dollar FLSA collective action

lawsuits filed by plaintiffs’ lawyers conflating sections

of the DOL regulations to allege wage theft. These

lawsuits—similar to Respondent Hewitt’s underlying

case—based on an invented fiction3 of what a salary

should “look like,” rather than the textual meaning of

the DOL regulations and applying the predominant,

legal precedent.

“By artful use of italics, ellipses, and other misdirection, the

majority describe § 541.602’s salary basis test as an incomplete

‘general’ rule to justify looking outside of § 541.602 to § 541.604

whenever an employee’s pay is calculated on a daily basis.” Hewitt

v. Helix Energy Sols. Grp., Inc., 15 F.4th 289, 308 (5th Cir. 2021)

(en banc) (Jones, J., dissenting).

C. ARGUMENT

1. The Industry has a Century-Long History of Using Textually-Compliant “Day

Rate” Guarantees.

The expertise and business practices of the oil and

natural gas industry underscore that the pay method

at issue is compliant with the text and intent of the

FLSA. The complex work of oilfield consultants, like

Respondent Hewitt, is required across a variety of upstream and midstream sectors to control the flow of oil

and natural gas, maintain well integrity, and control

pressure in wells and pipelines.4 Consultants are

sought-after workers, whose expertise protect the lives

and safety of other oilfield workers and oil and natural

gas assets, and are “not a [ ] class of minimum wage

earners who perform rote tasks in less than ideal conditions.” See, e.g., Sloane, 2017 WL 1105236, at *1.5

Thus, consultants negotiate and agree to their compensation, with ever-growing increases in the compensation guarantees they can and do demand.6

The oilfield (including offshore work) is a high-stakes and

high-pressure environment. See Parrish v. Premier Directional

Drilling, L.P., 917 F.3d 369, 375 (5th Cir. 2019).

Indeed, in Hughes v. Gulf Interstate Field Servs. Inc., the

plaintiff-consultants admitted they met the duties requirement of

the HCE, as well as the annualized income level. No. 2:14-cv-000432,

2016 WL 4197596, at *3 (S.D.Ohio Aug. 3, 2016), modified on clarification, 2016 WL 10592321 (S.D.Ohio Sept. 6, 2016), and rev’d

and remanded on other grounds, 878 F.3d 183 (6th Cir. 2017).

Annualized pay of many consultants can range from

$140,000 to $385,000. See infra Sections C(3)–(4).

This Court consistently considers input from relevant industry groups as amici curiae. See, e.g., Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 223–24

(2016). And, to correctly contextualize and frame the

legal dispute at hand, the history of the industry’s compliant day rate pay method is important.7 This pay

practice flourished for decades without censure.8 The

U.S. Geological Survey can trace the “well paid,” day

rate compensation plan of the “oil patch” back to at

least 1903 in California.9 For decades, the industry

has rightfully relied10 on the long-standing business

See, infra, Section C(4).

The same kind of reliance has impacted other industries.

See Encino, 579 U.S. at 222 (“A summary discussion may suffice

in other circumstances, but here—in particular because of decades of industry reliance on the Department’s prior policy—the

explanation fell short of the agency’s duty to explain why it

deemed it necessary to overrule its previous position. The retail

automobile and truck dealership industry had relied since 1978

on the Department’s position[ ].”) (citing Nat’l Auto. Dealers Ass’n,

Comment Letter on Proposed Rule Updating Regulations Issued

Under the Fair Labor Standards Act (Sept. 26, 2008)).

“In 1903, California for the first time led the country in petroleum production with 24.38 million barrels, . . . During those

early days of oil production, workers were well paid. A cable-tool

driller at the Kern River field earned $5 for a 12-hour day, and he

was expected to work 7 days a week.” Kenneth I. Takahashi &

Donald L. Gautier, A Brief History of Oil and Gas Exploration in

the Southern San Joaquin Valley of California, in U.S. Petroleum

Systems and Geologic Assessment of Oil and Gas in the San

Joaquin Basin Province, California 9 (Allegra Hosford Scheirer

ed. 2007), https://pubs.usgs.gov/pp/pp1713/03/pp1713_ch03.pdf.

See, e.g., Encino, 579 U.S. at 222–23 (“Dealerships and

service advisors negotiated and structured their compensation

plans against this background understanding.”).

practice of negotiating contracts with consultants

stipulating the consultants’ day rate pay,11 Highlyskilled consultants with substantial experience negotiate

among industry companies for the highest day rate

contract they can get for the type of work they want to

do, and when and where they want to do it. Industry

expertise, established practices, and historical context

are important when deciding certain legal issues. Justice Breyer’s prescient discussion in the oral argument

in Parker Drilling Management Services, Ltd. v. Newton exemplifies just how high the stakes are for the nationwide oil and natural gas industry, constituting

significant revenue and jobs12:

And you heard the answer they gave to the

question I asked, which was that 97 percent of

those involved in this are in the Fifth Circuit.

So I’m slightly worried. I don’t know if it’s

determinative, but I’m slightly worried about

See, e.g., Hurst Employers Cas. Co., Intervener v. Gulf Oil,

251 F.2d 836, 838 (5th Cir. 1958) (“shall be paid for by Gulf at the

applicable day rate set out below.”); Gulf Oil v. Wright, 236 F.2d

46, 47 (5th Cir. 1956) (“The term ‘day rate’ shall . . . designate the

work for which the Contractor is to be compensated at a stipulated sum per day.”).

The Bureau of Land Management (BLM) manages the 700

million acres of the Federal government’s onshore subsurface

mineral estate covering 30% of the nation including in Alaska,

California, Colorado, several Eastern states, Idaho, the MontanaDakotas, New Mexico, Oregon-Washington, Utah, and Wyoming.

U.S. Dep’t of Interior, Bureau of Land Mgmt., https://www.blm.

gov/programs/energy-and-minerals/oil-and-gas/about (last visited

Feb. 2, 2022). In Fiscal Year 2018 (the most-recent reporting), the

BLM generated nearly $3 billion in Federal royalties, and over

$1.1 billion in other, related revenue. Id.

overturning a set of court of appeals decisions

under which [the offshore oil and gas] industry and labor and everyone have worked, 97

percent of them, for 50 years.

Transcript of Oral Argument at 26, 53–54, Parker

Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881

(2019) (No. 18-389), 2019 WL 1672465.13

Despite the decades of uninterrupted practices, the

status quo of the oil and natural gas industry was disrupted when plaintiffs’ attorneys began a nationwide

See also, e.g., Christopher v. Smithkline Beechum, 132

S. Ct. 2156, 2167 & 2173 (2012) (considering history of the pharmaceutical industry’s reliance on its interpretation of the outside

sales exemption, and decades of silence by the DOL on the industry’s interpretation, and noting that highly paid pharmaceutical

sales employees paid over $70,000 were hardly the type of employee the FLSA was intended to protect); W. Virginia v. Env’t

Prot. Agency, No. 20-1530, 2022 WL 2347278, at *18 (June 30,

2022) (“it is not plausible that Congress gave EPA the authority”

to make changes that would “force a nationwide transition away

from the use of coal” and impact the power sector); see also McGirt

v. Oklahoma, 140 S. Ct. 2452, 2481 (2020) (“Finally, the State

worries that our decision will have significant consequences for

civil and regulatory law.”) Justices Gorsuch, Sotomayor, Kagan,

and Alito (Justices on both sides of the opinion and dissent) all

asked questions regarding consequences and impact of various

decisions the Court could make. Transcript of Oral Argument at

16–18, 23–25, 40–43, 79–82, McGirt v. Oklahoma, 140 S. Ct. 2452

(2020) (No. 18-9526), 2020 WL 2425717.

campaign14 attacking the day rate in boilerplate, collective lawsuits.15

To illustrate this campaign: Sloane, 2017 WL 1105236, at

*1 (“A few months later and following a radio campaign that

sought to recruit potential gas workers to serve as class members,

that same counsel arrived at this Court’s doorsteps, armed with

a new class representative but the same old theory.”) See also,

infra, Section C(4) at 22-3 and n.23. Additionally, an oil and

natural gas industry staffing company filed a libel suit in Texas

state against one such plaintiff ’s firm that targeted their workers

with LinkedIn ads regarding non-payment of overtime on client

projects. Aerotek Inc. v. Josephson Dunlap LLP, DC-20-06195,

162nd District Court, Dallas County, Texas (Apr. 29, 2020).

Finally, compare the time gap between Brock v. On Shore

Quality Control Specialists, Inc., No. CIV. A-84-CA-603, 1987 WL

31308, at *1 (W.D.Tex. Sept. 29, 1987) remanded from 811 F.2d

282, 284 (5th Cir. 1987) and the day rate cases in n.15, infra. In

Brock, an industry-member defendant argued that the consultant-plaintiffs’ compensation guarantee of at least $250 per week

satisfied 29 C.F.R. § 541.214(a) (1986), “Special proviso for high

salaried administrative employees.” Id. at *1, *6. The Court found

the consultants exempt from overtime under “Section 541.214(a)

. . . [because] compensate[ion] [was] on a salary or fee basis at a

rate of not less than $250 per week.” Id. at *6, *8. Further, the

U.S. Bureau of Labor Statistics Inflation calculator converts $250

in 1983 to the equivalent of $747.18 as of May 2022.

https://www.bls.gov/.

The instant Amici conducted a research survey finding

hundreds of day rate lawsuits in the past 10 years. The following

is a non-exhaustive list of 101 lawsuits (when including those

cited in Section C(3), infra). These lawsuits are all (a) nationwide

FLSA collective actions and/or a combination of a collective and

Rule 23 state-law, class action, (b) comprised of putative classes

of oilfield and/or offshore workers, most of whom are the “consultants” highlighted herein, and (c) filed against oil and natural gas

industry members based on paying a day rate. Unless a Westlaw

citation is included, the Amici are citing to the plaintiffs’ complaints on PACER wherein they pled the foregoing.

Non-Texas Federal cases:

Louvierre v. Cherokee Contractors, 1:22cv173 (D.N.M.

Mar. 7, 2022); Sisk v. Energy Inspection Services,

2:21cv1170 (D.N.M. Dec. 8, 2021); Sanders v. XTO Energy Inc., 1:21-cv-01725 (D.Del. Dec. 7, 2021); Lyman v.

Gas Gathering Specialists, 0:21cv2386 (D.Minn. Oct. 27,

2021); Coleman v. System One Holdings, 2:21cv1331

(W.D.Pa. Oct. 5, 2021); Neighbors v. True Performance

Directional Drilling, 2:21cv882 (D.N.M. Sept. 8, 2021);

Jones v. Solaris Water Midstream, 1:21cv567 (D.N.M.

June 18, 2021); Applegate v. Buckeye Partners, 2:21cv791

(W.D.Pa. June 16, 2021); Lee v. Schlumberger, 2:21cv493

(D.N.M. May 28, 2021); Taylor v. Hunt, Guillot, Associates LLC, 1:21cv477 (D.N.M. May 25, 2021); Cottrill v.

MDM Services, 8:21cv817 (C.D.Cal. May 3, 2021); Rogers v. 3Bear Energy, 1:21cv376 (D.N.M. Apr. 23, 2021);

Walker v. Pittsburgh Mineral Environmental Technology, 2:21cv510 (W.D.Pa. Apr. 15, 2021); Bone v. XTO,

2:20-cv-0069 (D.N.M. July 14, 2020); Aguilar v. DTE

Energy, 2:20cv11451 (E.D.Mich. June 4, 2020); Price

v. Devon Energy, 2:20cv316 (D.N.M. Apr. 8, 2020);

McCord v. Liberty Energy Services, 7:20cv2171 (S.D.N.Y.

Mar. 11, 2020); Altenhofen v. Southern Star Central

Gas Pipeline, 4:20cv30 (W.D.Ky. Feb. 24, 2020); Romero

v. Clean Harbors Surface Rentals, 368 F. Supp. 3d 152

(D.Mass. 2019); Oates v. Kinder Morgan, 5:19-cv01171-SLP (W.D.Okla. Dec. 18, 2019); Wells v. Colonial

Compliance Systems, 3:19cv7810 (N.D.Cal. Nov. 27,

2019); Fairchild v. The Williams Companies, 2:19cv1465

(W.D.Pa. Nov. 8, 2019); Robertson v. Rep Processing,

1:19cv2910 (D.Colo. Oct. 11, 2019); LeBlanc v. Halliburton, 17-CV-0718, 2018 WL 3999567 (D.N.M. Aug. 21,

2018); Kole v. Cleveland Integrity Services, 5:18cv1803

(N.D.Ohio Aug. 6, 2018); Stallings v. Antero Res. Corp.,

1:17-CV-01939-RM-NYW, 2018 WL 1250610 (D.Colo.

Mar. 12, 2018); Hebert v. Chesapeake Energy, 2:17-cv00852-GCS-KAJ (S.D.Ohio Sept. 28, 2017); Gleason v.

MVCI Energy Services, 1:17cv204 (D.N.M. Feb. 10,

2017); Boyd v. Spectra Energy, 7:16cv6902 (S.D.N.Y.

Sept. 1, 2016); Webb v. Quality Integrated Services,

2:16cv457 (W.D.Pa. Apr. 15, 2016); McCulloch v. Baker

Hughes, 1:16cv157 (E.D.Cal. Feb. 3, 2016); Casarotto

v. Expl. Drilling, Inc., 15-41-BLG-SPW-CSO, 2015 WL

8780050 (D.Mont. Dec. 15, 2015); Herbert v. MudTech

Services, 2:15cv933 (W.D.Pa. July 17, 2015); Dunne v.

Computerized Mudlogging Services, 4:15cv692 (N.D.Ohio

Apr. 8, 2015); Boudreaux v. Schlumberger, 6:14cv2267

(W.D.La. July 8, 2014); Prejean v. O’Brien’s Response

Management, 2:12cv1045 (E.D.La. Apr. 24, 2012).

Texas Federal cases:

Kee v. Parnell Consultants, 1:22cv48 (W.D.Tex. Jan. 18,

2022); Finley v. Sanchez Oil, 4:22cv129 (S.D.Tex. Jan. 13,

2022); Reed v. Enterprise Products Partners, 4:22cv116

(S.D.Tex. Jan. 12, 2022); Hardin v. The Texian Group

Inc., 4:22cv111 (S.D.Tex. Jan. 12, 2022); Shulark v.

Ensite USA Inc., 4:21cv3684 (S.D.Tex. Nov. 9, 2021);

Price v. Trinity Operating, 4:21cv3442 (S.D.Tex. Oct.

19, 2021); Young v. Harvest Midstream, 2:21cv226

(S.D.Tex. Sept. 29, 2021); Mitchell v. Kestrel Field Services, 4:21cv3100 (S.D.Tex., Sept. 23, 2021); Huggins v.

Boardwalk Pipelines, 4:21cv2273 (S.D.Tex. July 14,

2021); Roney v. Prime Energy, 5:21cv586 (W.D.Tex.

June 18, 2021); Gamboa v. XTO Energy Inc., 5:21cv387

(W.D.Tex. Apr. 16, 2021); Pardue v. 3B Inspection,

4:21cv20 (W.D.Tex. Apr. 7, 2021); Garrett v. Salt Creek

Midstream, 4:21cv11 (W.D.Tex. Feb. 19, 2021); Guilbeau

v. Schlumberger, 5:21cv142 (W.D.Tex. Feb. 12, 2021);

Kennedy v. Turbo Drill Industries, 7:20cv251 (W.D.Tex.

Oct. 27, 2020); Hamrick v. Enbridge Inc., 4:20cv3647

(S.D.Tex. Oct. 23, 2020); Curtis v. Houston Inspection

Field Services, 4:20cv3515 (S.D.Tex. Oct. 14, 2020);

Curry v. FIS Operations, 2:20cv215 (S.D.Tex. Aug. 25,

2020); Cox v. Oasis Petroleum, 4:20cv2903 (S.D.Tex. Aug.

18, 2020); Bales v. Crestwood Midstream, 4:20cv2654

(S.D.Tex. July 28, 2020); Callaway v. Marathon Oil,

5:20cv863 (W.D.Tex. July 24, 2020); De Leon v. Northern Natural Gas Co., 7:20cv179 (W.D.Tex. July 24,

2020); Tollefson v. Anadarko, 7:20cv168 (W.D.Tex.

July 13, 2020); Chisum v. Callon Petroleum, 4:20cv51

(W.D.Tex. July 10, 2020); Doucet v. Boardwalk Pipelines, 4:20cv1793 (S.D.Tex. May 22, 2020); Isgett v.

XTO Energy Inc., 4:20cv32 (W.D.Tex. Apr. 30, 2020);

Welch v. Jenn Energy, 5:20cv59 (S.D.Tex. Apr. 20,

2020); West v. Primexx Energy, 7:20cv98 (W.D.Tex.

Apr. 20, 2020); Maillet v. Centennial Resource Development, 4:20cv28 (W.D.Tex. Apr. 20, 2020); Hutchings v.

XTO Energy, 7:20-cv-00094 (W.D.Tex. Apr. 16, 2020);

Stanley v. Patriot Inspection Services, 6:20cv283 (W.D.Tex.

Apr. 9, 2020); Hinkle v. Phillips 66, 4:20cv22 (W.D.Tex.

Apr. 1, 2020); Tipton v. Anadarko, 4:20cv439 (S.D.Tex.

Feb. 7, 2020); Diaz v. Precision Well Logging, 4:19cv4876

(S.D.Tex. Dec. 16, 2019); Hester v. Phillips 66,18-CV1078, 2019 WL 1930271 (S.D.Tex. Apr. 30, 2019); Bernstein v. Buckeye, Inc., 18-CV-097-DC, 2019 WL 2563841

(W.D.Tex. Apr. 24, 2019); Stringer v. McDaniel Technical

Services, 7:19cv32 (W.D.Tex. Feb. 1, 2019); Gutierrez v.

Drill Cuttings Disposal, 319 F. Supp. 3d 856 (W.D.Tex.

2018); McLelland v. Carrizo Oil & Gas, 4:18-cv-04214

(S.D.Tex. Nov. 6, 2018); Grice v. Range Resources,

3:18cv269 (S.D.Tex. Sept. 11, 2018); Saltzman v. VON

Energy, 4:18cv2883 (S.D.Tex. Aug. 20, 2018); Aaron v.

DC International, 3:18cv44 (S.D.Tex. Feb. 14, 2018);

Shirey v. Helix Energy Solutions, 4:17cv2741 (S.D.Tex.

Sept. 12, 2017); Rosas v. Dark Star Prod. Testing, 2:16CV-140, 2017 WL 8682221 (S.D.Tex. July 31, 2017);

Snead v. EOG Res., Inc., 5:16-CV-1134-OLG, 2017 WL

6294875 (W.D.Tex. Feb. 14, 2017); Cruz v. Conocophillips, 208 F. Supp. 3d 811 (S.D.Tex. 2016); McAfee v. Pioneer Natural Resources, 4:16cv3298 (S.D.Tex. Nov. 8,

2016); McGrew v. Quinn’s Rental Servs., 16-CV-543,

2016 WL 3974836 (S.D.Tex. July 25, 2016); Cator v.

DXP Enterprises, CV SA-15-CA-179-FB, 2016 WL

11580735 (W.D.Tex. May 19, 2016); Shaffer v. M-I,

LLC, 14-CV-2966, 2015 WL 7313415 (S.D.Tex. Nov. 19,

2015); York v. RWDY Inc., 4:15cv3076 (S.D.Tex. Oct.

19, 2015); DeFoor v. Sun Drilling, 4:15cv701 (S.D.Tex.

Mar. 16, 2015); Songer v. Advanced Building Services,

4:14cv3154 (S.D.Tex. Nov. 5, 2014); Lucas v. Crescent

Directional Drilling, 4:14cv1635 (S.D.Tex. June 11,

Despite the defensible pay practice, the sheer

mass and scale of these collective action lawsuits, including the time and expense and exposure associated

with defending FLSA collective actions of this type,16

push the oil and gas industry member-defendants into

a corner. Thus results “discounted” collective settlements made for business-saving purposes, while plaintiffs’ attorneys predominantly receive 33 to 40 percent

of the settlement fund, equating to millions of dollars.

2. The Reasonable Relationship Test Does

Not Apply to the HCE.

The oil and natural gas industry’s day rate guarantee system is built around a text-based, common

sense reading of the HCE, 29 C.F.R. § 541.601. Since

the modern HCE’s creation in 2004, the industry relies

on the independence of the HCE from the reasonable

relationship test set out in 29 C.F.R. § 541.604(b).

While both sections address the issue of salary basis

for an exempt employee, they cannot be read to overlap

without creating illogical and conflicting results.

2014); Meyer v. Phoenix Technology Services, 4:14cv1490

(S.D.Tex. May 28, 2014); Murphy v. Multi-Shot LLC,

4:14cv1464 (S.D.Tex. May 23, 2014).

Given that the number of hours worked in the oil patch can

exceed 84 hours or more (seven, 12-hour days), one consultant

(which is only one of several type of day rate positions in the

oil patch) who is paid $1,500 a day, and works 240 days a year

can accumulate $561,000 in overtime exposure over three years.

At 100 consultants, that outside exposure quickly extrapolates to

$56,000,000 with liquidated damages.

Every Circuit deciding this issue, with the exception of the Fifth Circuit, acknowledges this distinction.

Litz v. Saint Consulting Grp., Inc., 772 F.3d 1, 5 (1st

Cir. 2014) (seeing “no reason” why § 541.604’s requirements “should be grafted onto the materially different exemption” contained in sections 541.601 and

541.602(a)); Anani v. CVS RX Servs., Inc., 730 F.3d 146,

149 (2d Cir. 2013) (“We perceive no cogent reason why

the requirements of C.F.R. § 541.604 must be met

by an employee meeting the requirements of C.F.R.

§ 541.601”); Hughes v. Gulf Interstate Field Servs., Inc.,

878 F.3d 183, 189–91 (6th Cir. 2017); accord Faludi v.

U.S. Shale Sols., LLC, 950 F.3d 269, 275 (5th Cir. 2020)

(finding a defendant’s arguments advancing this point

to be “well taken” while observing that a different issue

was sufficient to resolve the appeal).17

The Fifth Circuit’s majority opinion split from

other Circuits when it conflated the reasonable relationship test with the HCE by improperly tethering

§ 541.602(a), the “salary basis” rule, with § 541.604(b).

While the HCE expressly references the “salary-basis”

rule set forth in § 541.602, it does not incorporate the

reasonable relationship test in § 541.604(b). “[T]he

majority should have started—and ended—with the

plain terms of § 541.602 to determine that Hewitt

See also Scott v. Antero Res. Corp., No. 17-CV-0693-WJMSKC, 2021 WL 2012326, at *1048 (D. Colo. May 20, 2021) (granting summary judgment based on the HCE against consultantclass holding “because their $1,000 day rate guarantees them at

least [the HCE-required minimum] per week and they regularly

received that predetermined amount on a weekly or less frequent

basis”), appeal filed, No. 21-1188 (10th Cir. May 21, 2021).

satisfied the salary basis test.” Hewitt, 15 F.4th at 307

(Jones, J., dissenting). “Hewitt . . . received his

paycheck biweekly, as required by the first part of the

salary basis test. And in any week in which he performed any work he was guaranteed a ‘predetermined

amount’ of at least $963 (his day rate).” Id.

The salary-basis test does not turn on how the

employer calculates the employee’s salary. Section

541.602(a) only requires that the employee regularly

“receive[ ] . . . on a weekly, or less frequent basis, a predetermined amount. . . .” When that requirement is

satisfied, how an employer denominates the payment

unit (be it hourly, daily, weekly, or annually) is not dispositive. The HCE itself contemplates “extras” in the

form of commissions, nondiscretionary bonuses and

other nondiscretionary payments—and there is no requirement that those extras bear a reasonable relationship to the guaranteed amount. In fact, the HCE’s

own language, § 541.601(b)(2), expressly permits a single lump-sum catch-up payment to achieve regulatory

compliance. This is unlike § 541.602(a)(3), which restricts a catch-up to 10 percent or less of the salary

guarantee, while no such cap exists within the HCE.

On the other hand, a plain reading of § 541.604

describes an avenue for exempt employees (not highlycompensated employees) who are paid a minimum

guarantee plus extras, and requires that the “extras”

bear a reasonable relationship to the minimum guarantee. Through its creation of these two separate regulations, the DOL expressed its intention that each be

applied separately and independently.

The plain text of the regulations does not support

the Fifth Circuit majority’s interpretation. Section

541.601 states that “[t]otal annual compensation”

must include at least $684 per week paid on a salary

or fee basis as set forth in §§ 541.602 and 541.605.” It

does not, in any way, reference § 541.604, which contains the reasonable relationship requirement. If the

DOL intended for the HCE to include the reasonable

relationship requirement, it would have done so by expressly incorporating § 541.604 into § 541.601. The

fact that the text of § 541.601 does not reference

§ 541.604, as it does other sections, is a clear indication

that § 541.601 operates independently of § 541.604

and its reasonable relationship requirement.

Likewise, § 541.602, which addresses the salary

basis test, does not include any reference to § 541.604,

undermining the majority’s conclusion in Helix that

§ 541.604 is an exception or proviso to the salary basis

test. Again, if that is what the DOL intended, it would

have included an express reference to § 541.604 in

§ 541.602—or even combined the two provisions into a

single section. In fact, prior versions of the regulations

did just that. As noted in Justice Jones’s dissent:

The minimum guarantee plus extras provision used to be part and parcel of the salary

basis test . . . But in 2004, the Department of

Labor first promulgated the provision for

highly compensated employees in § 541.601.

Contemporaneous with the creation of the

regulatory exemption for highly compensated

employees came the decoupling of today’s

§ 541.604 from the salary basis test . . . Why

spin off § 541.604 only to have courts effectively re-incorporate it back sub silentio into

the new highly compensated employee exemption?

Hewitt, 15 F.4th at 313–14 (Jones, J., dissenting) (footnotes omitted). The regulatory history and text confirm

that the reasonable relationship requirement is not intended to be applied to the HCE. As Justice Jones aptly

recognizes, “[t]he Department excised the minimum

guarantee plus extras subsection from the salary basis

provision and, for the first time, transformed that subsection into a new § 541.604. The timing is meaningful.” Id.

And while a haphazard interpretation of § 541.604(b)

appears to address “day rates” by applying the reasonable relationship test to earnings computed on an

“hourly, a daily or a shift basis,” this is a red herring.

Unlike a guarantee that represents an aggregation of

multiple hours, days or shifts (which is likely what the

DOL contemplated when creating this safeguard), a

single day rate that, alone, already exceeds the regulatory salary minimum ($684) falls outside of the plain

text and meaning of § 541.604(b). Indeed, the 1949

Weiss Report18 expressly acknowledges—that salaries

“paid on a daily or shift basis” satisfy the salary basis

requirements “if the employment arrangement

This is a comprehensive report regarding regulatory definitions of exempt employees, and was produced after 22 days of

hearings and over 200 witnesses and statements, including significant testimony on behalf of various industries. Id. at 1–2.

includes a provision that [the employee] will receive

not less than the amount specified in the regulations

in any week in which he performs any work.” Wage and

Hour & Pub. Contracts Divs., Dep’t of Labor, Defining

the Terms “Executive” “Administrative” “Professional”

“Local Retailing Capacity” “Outside Salesman” (1949),

at 26 (the “Weiss Report”). This report finding was

based on testimony from a coal industry representative regarding foremen daily compensation.—Id. at 26,

n.100, 24, n.92. The DOL continues to rely on this historic report. See 2004 Final Rule, 69 Fed. Reg. 22,122,

22,174.

Stepping back and viewing the regulatory scheme

as a whole, Subpart A, makes clear that Subpart G

“contains regulations regarding salary requirements

applicable to most of the exemptions” including the executive, administrative, and professional exemptions

found in Subparts B, C, and D. 29 C.F.R. § 541.0(b) (emphasis added). It also states that Subpart G “contains

a provision for exempting certain highly compensated

employees” that is described separately from Subpart

G’s “regulations regarding salary requirements.” Id.

That the HCE is embedded within Subpart G is a clear

indication that only those sections specifically enumerated in § 541.601, i.e., §§ 541.602 and 541.605, apply to

the HCE.

Applying the reasonable relationship requirement

to the HCE is illogical, and inconsistent with a plain

reading of the text. The calculations outlined in the

HCE contemplate that highly compensated employees could receive total compensation well above the

weekly $684 guarantee. The HCE requires a minimum

guarantee of $684 per workweek ($35,568 annualized),

and at least $107,432 in total annual compensation,

thus contemplating a correlation between the guarantee amount and the amount actually earned that is

422.7 percent greater than the minimum guarantee.

See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and

Computer Employees, 69 Fed. Reg. 22,121, 22,175 (Apr.

23, 2004) (“2004 Final Rule”). However, § 541.604(b)

requires a narrower ratio. See 29 C.F.R. § 541.604(b)

(demonstrating a weekly ratio of 150 percent of the

guarantee). A conclusion that employees who regularly

receive pay substantially greater than the guarantee

could not qualify as highly compensated employees

would be a conflicting and expressly unintended result.

See 29 C.F.R. § 541.601(c).

Further, if an employee is paid a guarantee of $684

on a weekly basis, Section 541.601(b)(2) expressly contemplates that the approximately $70,000 shortfall

could be made up in a year-end, single lump sum payment, with no reasonable relationship requirement.

Id. § 541.601(b)(2). And although the recently added

§ 541.602(a)(3) to the salary basis regulation states

that up to 10 percent of the salary basis may be satisfied by nondiscretionary bonuses, incentives, and commissions, it expressly excludes from this limitation

highly compensated employees under § 541.601. As

such, under the HCE, there is no cap on the amount

that can be satisfied through these types of payments.

The Fifth Circuit majority’s reasoning renders this

payment arrangement inconsistent with § 541.604’s

reasonable relationship test, even though this type of

arrangement is expressly contemplated by the very

regulation that sets forth the HCE.

Moreover, the salary basis regulation’s textual

phrase “regularly receives” does not reflect a written or

contractual requirement for the guarantee. 29 C.F.R.

§ 541.602(a). The Sixth Circuit, considering this issue,

held that the foundation of the predetermined amount

is not what the underlying employment agreement

says, but rather the amounts the plaintiff actually received. Hughes, 878 F.3d at 188–89 (interpreting 29

C.F.R. § 541.602).19

Accordingly, a superficial application of the salary

basis test disturbs a longstanding principle that exemptions should be analyzed based on the reality of the circumstances, not labels used by the parties. See, e.g.,

Zannikos v. Oil Inspections, 605 F. App’x 349, 357 (5th

Cir. 2015) (per curiam); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 848 (6th Cir. 2012); Chicca v.

St. Luke’s Episcopal Health Sys., 858 F. Supp. 2d 777,

783 (S.D.Tex. 2012); cf. Gray v. Powers, 673 F.3d 352,

355 (5th Cir. 2012) (noting the origin of the economic

reality test that governs the determination of employer

status under the FLSA). In sum, “[t]extualism ‘is not

always easy,’ it ‘can be hard work and involve significant research,’ and it ‘is not glamourous,’ but done

“[The] regulatory phrase was once longer; it used to read:

‘if under his employment agreement he regularly receives.’ ”

Hughes, 878 F.3d at 188–89 (quoting 29 C.F.R. § 541.118(a) (1973))

(emphasis in original).

properly it is both ‘straightforward’ and ‘fair.’ Doing

the hard work here refutes the view that § 541.601’s

exemption for highly compensated employees must be

read in light of § 541.604 [reasonable relationship

test].” Hewitt, 15 F.4th at 309 (Jones, J., dissenting)

(quoting Diarmuid O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 ST.

JOHN’S L. REV. 303, 312 (2017)).

3. The Fifth Circuit Majority Opinion Inappropriately Complicates the HCE Analysis.

The HCE, was “proposed [as] a special, streamlined

rule for employees paid $65,000 or more annually.” Proposed Rule Defining and Delimiting the Exemptions

for Executive, Administrative, Professional, Outside

Sales and Computer Employees, 68 Fed. Reg. 15,559,

15,571 (Mar. 31, 2003) (“2003 NPRM”). The DOL’s discussion on crafting the highly compensated limitations

on overtime entitlement for the most highly paid individuals in the country is instructive given that consultants squarely fit within the parameters the DOL

contemplated for the HCE.20 The DOL noted that “setting the highly compensated test at this salary level

The analysis provided that “in the rare instances when employees receiving salaries of $100 a week or more did not meet all

the other requirements of the regulations in every workweek, a

determination that such employees are exempt would not defeat

the objectives of the exemption [ ].” 2003 NPRM, 68 Fed. Reg. at

15,570; see also Report and Recommendations on Proposed Revision of Regulations, Part 541 Under the Fair Labor Standards

Act, March 3, 1958, by Harry S. Kantor, Assistant Administrator,

Presiding Officer (“Kantor Report”) at 10.

provides the Department with the confidence that . . .

in the rare instances when these employees do not

meet all other requirements of the regulations, a determination that such employees are exempt would not

defeat the objectives of section 13(a)(1) of the Act.”

2004 Final Rule, 69 Fed. Reg. at 22,174 (quoting 1949

Weiss Report at 22–23).

The 2004 Final Rule describes the 1958 Kantor

Report’s “methodology of looking to the ‘range of salaries actually paid’ to employees is the ‘most accurate

approach to set the salary levels.’ ” Id. at 22,167 (emphasis added). Respondent Hewitt’s “day rate,” or to

better reflect the economic reality, his “guarantee,” resulted in his take-home compensation being “well over

$200,000 each year.” Hewitt, 15 F.4th at 297. Other

consultants’ guarantees can result in annual compensation exceeding $300,000. A $1,600 guarantee annualizes to $291,000 if the consultant works at least part of

one day during 26 weeks out of the year, and to

$384,000 during two-thirds of the weeks in a year.

Complaint at 1, 4, Steve Byrd v. ETX Energy, LLC, No.

4:20-cv-01622 (S.D.Tex. May 7, 2020), Doc. 1 (“[O]ilfield

worker[’s] . . . day rate was $1,600 per day.”); Parrish,

917 F.3d at 384–85 (noting that consultant earned

$230,033.30 in 2013 and $279,777.31 in 2014”).21

The truth is that consultants’ own statements in

these lawsuits repeatedly demonstrate—under oath—

that they know and understand their guaranteed payment, which is not subject to change based on quality

See supra Section C(2) at 15-17.

or quantity of work on any given day. For example, in

Hoeflein v. Crescent Drilling & Prod., Inc., the court

considered consultant declarations in ruling on conditional certification. No. SA-19-CV-01194-FB, 2020 WL

1931849, at *2 (W.D.Tex. Apr. 21, 2020):

•

“The day rate I received was paid without regard to the number of hours I worked each

day. . . .”

•

“I was paid a day rate regardless of the particular job or location I worked on.”

Id. at Pls.’ Mot. Conditional Cert. at Exs. A-B.22 In practical application, consultants, like other exempt workers that pass the salary basis test, have certainty as to

their take home pay—in advance—given the guarantee, regardless of hours worked. This similarity is reflected in the salary basis test provisions applicable

to non-HCE exempt individuals. See, e.g., 29 C.F.R.

§ 541.602(a)(3) (employer allowed to use a make-up

payment to meet required annual compensation level),

See also Scott, 2021 WL 2012326, at *1041 (“Antero paid

Plaintiffs . . . at least $200,000 per calendar year . . . Plaintiffs

agree that Antero paid them a day rate of at least $1,000 per day

for each hitch.”) (internal citations omitted); Amended Complaint

at 4, Carter v. All American Oilfield, LLC, No. 3:21-cv-00007-JMK

(D. Alaska Mar. 4, 2021) (Day rate of $1,027.76 and “[i]f Plaintiff

worked a seven-day workweek, which was typical, he worked

eighty-four hours in that workweek”); Gutierrez v. Drill Cuttings

Disposal, 319 F. Supp. 3d 856, 858 (W.D.Tex. 2018) (“Plaintiffs

allege that [they] regularly worked 84 hours in a week”); Bernstein v. Buckeye, Inc., No. 18-CV-097-DC, 2019 WL 2563841, at *4

(W.D.Tex. Apr. 24, 2019) (same “typical schedule”); Sloane, 4:16CV-01571 at *1 (“an annualized salary of $140,500”).

§ 541.602(a)(1) (“need not be paid for any workweek in

which they perform no work”); § 541.602(b)(1) (full day

docking available when “absent from work for one or

more full days for personal reasons”).

The DOL’s data behind the HCE shows that

“[e]mployees earning $100,000 or more per year”—

such as these consultants—“are at the very top of today’s economic ladder.” 2004 Final Rule, 69 Fed. Reg.

at 22,174.23 The DOL understood that in creating the

HCE it would render certain non-manual workers ineligible for overtime. Id. at 22,214. Thus, the DOL designed the HCE to provide a compensation-based

litmus test that avoids the burdens on employers attributed to the white-collar exemptions, and it expressly

considered the HCE would add exempt employees to

the nation’s workforce. Id. The heightened burden24 in

the Helix majority opinion would make the HCE more

difficult to apply to consultants, as well as other types

of workers. See Anani, 730 F.3d at 149 (pharmaceutical

industry); Litz, 772 F.3d at 5 (consulting firm).

Nowhere in the hundreds of pages of the DOL’s annals of drafting, nor the HCE text itself, is the Fifth

See also U.S. Bureau of Lab. Stats., Economic News Release (Apr. 16, 2021), https://www.bls.gov/news.release/wkyeng.

t05.htm (national pay scale).

Indeed, the DOL’s intent to create a “streamlined” exception to the more-robust exemption tests is reflected by the fact

that the DOL considered, and invited comments, on “adopting a

‘salary only’ test for highly compensated employees [under which

employees] earning a total annual compensation over a certain

amount would automatically be considered exempt.” 2003 NPRM,

68 Fed. Reg. at 15,571.

Circuit’s requirement that to satisfy the HCE, the

proponent must meet 29 C.F.R. § 541.601 as well as

29 C.F.R. § 541.604(b) in order to claim the exemption. What the HCE text does specifically require is

that “ ‘[t]otal annual compensation’ must include at

least $684 per week paid on a salary or fee basis as

set forth in §§ 541.60225 and 541.605.”26 29 C.F.R.

§ 541.601(b)(1). Ignoring the reality that many consultants receive annualized pay of hundreds of thousands of dollars, which the worker receives on a

weekly-or-less-frequent basis, regardless of how it is

calculated, is contrary to the intent of the HCE and

creates an illogical, disjointed analytical framework.27

4. Consultants’ Guarantees Are the Result

of Bargaining by Skilled Professionals

and Are Necessitated by the Unpredictable Nature of Work in the Oil and Natural Gas Industry.

A guarantee is a guarantee. But the Fifth Circuit’s

majority opinion does not address the reality of the

consultants’ (commonly) weekly, take-home paychecks,

and conflates the DOL’s regulatory definition of the

§ 541.602 defines “salary basis” and is at issue and addressed infra Section C(2).

§ 541.605 is regarding payment on a fee basis and is not at

issue.

The repeated references to the HCE (29 C.F.R. § 541.601)

throughout both the 2003 notice of proposed rulemaking, and the

2004 Final Rule, look at the HCE through the lens of annualized

compensation. See generally 2003 NPRM, 68 Fed. Reg. at 15,560;

2004 Final Rule, 69 Fed. Reg. at 22,174.

“salary basis test” with what the majority deemed a

“common parlance” idea of what a salary means.28 Section 541.602(a) unequivocally tells us how to define

salary—a guarantee of at least $684, received at least

each week.

Indeed, “[i]t is the salary-basis test that is sharply

contested in this case[,]”29 and the text plainly supports

that day rates paid to consultants constitute salaries

under the FLSA, regardless of what the parties call the

compensation. The consultants at issue “regularly receive[ ] each pay period on a weekly, or less frequent

basis, a predetermined amount constituting all or part

of [their] compensation.” 29 C.F.R. § 541.602(a). Consultants do not receive their pay on a daily basis, they

receive pay on a weekly, or less frequent basis. Further,

they know before each week, that if they work one

day—or even just one hour on one day—they will receive at minimum their guaranteed day rate for that

week, which is $684-plus for consultants. Consistent

with this definition, a DOL 2020 opinion letter

acknowledges that what payments are “called” does

not determine whether the payments satisfy the salary

basis test. U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter FLSA2020-2, at 1, 3 (Jan. 7, 2020), 2020 WL

“As a matter of common parlance, we typically associate

the concept of ‘salary’ with the stability and security of a regular

weekly, monthly, or annual pay structure. By contrast, we do not

ordinarily think of daily or hourly wage earners—whose pay is

subject to the vicissitudes of business needs and market conditions—as “salaried” employees.” Hewitt, 15 F.4th at 291 (en banc).

Hewitt, 15 F.4th at 291 (emphasis added).

122924.30 Further, according to the 2004 Final Rule,

“legislative history indicates . . . the workers exempted

typically earned salaries well above the minimum

wage” and like, here, regarding oil patch work, “the

type of work they performed was difficult to standardize to any time frame[.]” 69 Fed. Reg. at 22,123–24.

To best adapt to the reality of the day-to-day work

in the oil and natural gas industry, and to the preference

consultants command in this particular professional

services market, companies rely on compensating with

day rate guarantees. Courts in the First, Second, Third,31

See also U.S. Dep’t of Labor, Wage & Hour Div., Opinion

Letter at 3 (Sept. 3, 1999), 1999 WL 1788150; Faludi v. U.S. Shale

Sols., LLC, No. 17-20808, 2019 WL 3940878, at *3 (5th Cir. Aug.

21, 2019); West v. Anne Arundel Cnty., 137 F.3d 752, 761–63 (4th

Cir. 1998) (holding the salary basis test met when “Plaintiffs receive a minimum predetermined amount every two weeks, plus

additional compensation in the form of overtime”).

Sloane, No. 4:16-CV-01571 at *17 (In denying FLSA and

Rule 23 certification, “Thus, somewhat confusingly, for Plaintiffs

to prevail, they must contend that a promised amount guaranteed

for a set period of days was not a salary. Just because a salary is

expressed as a guaranteed amount per day does not mean that it

is no longer a salary—just the same as expressing it in an hourly,

bi-weekly, monthly, or quarterly increments does not convert it

from a salary to an ‘hourly rate,’ ‘monthly rate,’ or ‘quarterly

rate.’ ”).

Sixth,32 and Tenth33 Circuits endorse the key features

of this pay method to consultants resulting in hundreds, or thousands, of dollars per day for specialized

work. See Hughes, 878 F.3d at 189–91; Litz, 772 F.3d at

5; Anani, 730 F.3d at 149. The “nature” of work at “an

oil-drilling site” demands training for safe operations

and is such that “[a]n error in [judgment] can lead to

losing a significant amount of money—sometimes hundreds of thousands of dollars.” Parrish, 917 F.3d at 375,

383.

Consultants may float between companies and

oilfields around the country (and the world) as they

complete each project. The economic reality is that the

guarantees in this industry are salaries not subject to

reduction based on the quality or quantity of work and

accommodate the unpredictability of the oil patch. Accordingly, when consultants step foot on a worksite,

they are paid their guarantee, regardless of whether

work continues through the rest of the hour, the day, or

Notably relevant consultant, day rate collective actions:

Fenley v. Wood Grp. Mustang, Inc., 325 F.R.D. 232, 243 (S.D.Ohio

2018) (quoting Hughes, 878 F.3d at 190) (“the ultimate the outcome of this matter is dependent on whether the Inspectors’ salaries “[were] in fact guaranteed [ ]”); see also Ganci v. MBF

Inspection Servs., Inc., 323 F.R.D. 249, 262 (S.D.Ohio 2017) (“this

District has recently held that day rate compensation can satisfy

the salary basis test if the employee in fact received weekly compensation of at least $455, regardless of whether the compensation was calculated per day or per week”).

Scott, No. 17-CV-0693-WJM-SKC, at *1041, 1048. (Consultantplaintiffs concede they were guaranteed “at least $1,000 per day

for each hitch.”).

the week. Or, shuts down early because of weather or

operational problems.34

Companies should be able to devise compensation

structures that reflect unique work environments, and

the FLSA has been interpreted to support this logic

and payment structure. See Brock, 1987 WL 31308 at

*7 (“[F]rom the[ir] testimony . . . that all the inspectors

[ ] used their independent judgment and discretion to

. . . shut down jobs when unsafe conditions so merited,”

among other court findings); Acs v. Detroit Edison Co.,

444 F.3d 763, 765 (6th Cir. 2006) (emphasis added) (citing U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter (July 9, 2003)) (finding the pay plan of a utility

company with 24-hour operations to “ha[ve] satisfied

the administrative requirements of the salary-basis

test” based on the company’s pay “guarantee” to its employees, despite some workweeks having less-than 40

hours, with others having more-than 40 hours).

To require the oil and natural gas industry to pay

overtime on consultant compensation would increase

consultant labor costs in exploration and production by

a minimum of 26.2 percent—for the overtime costs

alone and, when coupled with liquidated damages

For example, the Texas Railroad Commission regulates

the state oil and natural gas industry. Using weather as only one

illustration, the Commission website has issued at least 723

weather-based notices in recent years. Notifications are used to

make judgment calls regarding safety-related and operationalintegrity decisions. See, e.g., Notice To Operators: Tropical Storm

Nicholas (Sept. 13, 2021), https://www.rrc.texas.gov/announcements/

091321-nto-tropical-storm-nicholas/ (last visited Feb. 6, 2022).

available under the FLSA, that co-efficient increases to

56.4 percent.35 A single consultant making around

$200,000 annually, like Respondent Hewitt, can result

in an additional $52,000 a year in back wages. Appending these types of costs to expensive exploration will

drive up oil and gas production costs, potentially slow

down production, and threaten consultant jobs nationwide, contrary to the FLSA’s intent. Accord Marzuq v.

Cadete Enterprises, Inc., 807 F.3d 431, 445–46 (1st Cir.

2015) (citing 2004 Final Rule, 69 Fed. Reg. at 22,124)

(“job expansion [was] intended by the FLSA’s timeand-a-half overtime premium,” not to reduce jobs or

opportunities because overtime is required).

Consultants perform hard work. The oil and natural gas industry is built on hard work. “Textualism . . .

can be hard work” (supra), but the majority’s opinion

does not do the work and creates a broken result that

consultants earning over $107,000 annually are not

HCE-workers exempt from overtime.

D. CONCLUSION

The judgment of the court of appeals should be reversed. An industry-wide pay practice that has successfully aged for 120 years without censure should

be upheld pursuant to the plain text and intent of the

The mathematical co-efficient for 84 hours (seven days of

12 hours) is 26.2 percent of overtime. See U.S. Dep’t of Labor,

Wage & Hour Div., Coefficient Table for Computing Extra HalfTime for Overtime, https://www.dol.gov/sites/dolgov/files/WHD/

legacy/files/CoefficientTableWH-134.pdf. See also supra, Section

C(1) at n.16.

FLSA. The U.S. oil and natural gas industry should not

be upended because of non-textualist, inapposite interpretations of the word salary.

Respectfully submitted,

DAVID B. JORDAN

Counsel of Record

KELCY L. PALMER

PAIGE A. CANTRELL

ALLISON C. WILLIAMS

LITTLER MENDELSON, PC

1301 McKinney Street

Suite 1900

Houston, TX 77010

(713) 951-9400

djordan@littler.com

CORY POMEROY

TEXAS OIL & GAS ASSOCIATION

304 West 34th Street

Austin, TX 78701

(512) 478-6631

COLE W. RAMSEY

AMERICAN PETROLEUM INSTITUTE

200 Massachusetts Ave. NW

Suite 1100

Washington, DC 20001

(202) 682-8000

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.