5th Circuit sharply divides in finding supervisor deserves overtime

The judge's bench is seen in a court room at the New York State Civil Supreme Court in Manhattan, New York City
REUTERS/Andrew Kelly
  • 5th Circuit on 12-6 vote rules Helix Energy Solutions Group owes overtime to supervisor of offshore oil rig workers
  • U.S. Circuit Judge James Ho says "textualist" reading of law requires result

(Reuters) - An ideologically splintered federal appeals court concluded a supervisor of offshore oil rig workers earning $200,000-plus annually still qualified under federal law for overtime, with a conservative judge saying the law's text demanded that result even if industry suffered.

The full 5th U.S. Circuit Court of Appeals on a 12-6 vote on Thursday rejected Helix Energy Solutions Group Inc's bid to treat him as a highly compensated executive exempt from Fair Labor Standards Act's overtime requirements despite paying him on a daily basis.

U.S. Circuit Judge James Ho, writing for the majority, said that while a daily-rate worker can be exempt from overtime, companies needed to guarantee a minimum weekly wage that reasonably related to the amount actually earned.

He said Helix did not meet those conditions with Michael Hewitt and asked the court to ignore them. But Ho said "respect for text forbids us from ignoring text" in finding the plain text of the relevant FLSA regulation meant Helix owed overtime.

Ed Sullivan, Hewitt's attorney at Oberti Sullivan, in a statement welcomed the ruling, saying "almost every disinterested labor and employment lawyer knows that an employee who is paid purely by the day is not paid a salary under the FLSA."

Carter Crow, Helix's lawyer at Norton Rose Fulbright, declined to comment.

The court took the case en banc after a 2-1 panel in April 2020 overturned a Texas federal judge's ruling and held Hewitt qualified for overtime.

Ho, an appointee of Republican former President Donald Trump, called Thursday's ruling the result of a "textualist" approach, which relies on the actual wording of laws, cited former Supreme Court Justice Antonin Scalia, its top advocate, for support.

"Our job is to follow the text—not to bend the text to avoid perceived negative consequences for the business community," Ho wrote.

To stress his point, Ho, as he has in some other cases, issued a concurring opinion to his majority opinion rejecting arguments by Republican states attorneys general and industry groups with "atextual" theories about why overtime was not warranted.

"There's no such thing as a part-time textualist," Ho wrote. "If we're not textualists in every case, then we're not really textualists at all."

His majority opinion was embraced by seven of the en banc court's 12 other Republican-appointed judges, five of whom were also appointed by Trump and were members of the Federalist Society, which supports textualism.

But the ruling was also backed by four of the court's five Democratic-appointed judges and drew dissents from several other conservative judges who called it illogical.

U.S. Circuit Judge Jacques Wiener, an appointee of Republican former President George H.W. Bush, blasted the majority's "questionably self-labeled 'textualist' position" as undermining the FLSA's goal of benefiting blue collar laborers over supervisors.

"I imagine that the original proponents of the FLSA—including President Franklin D. Roosevelt, during whose term the FLSA and other 'Great Depression' measures were enacted—are turning over in their respective graves," Weiner wrote.

U.S. Circuit Judge Edith Jones, an appointee of Republican former President Ronald Reagan, said the majority's ruling suffered from "textual errors" and ignored "uncomfortable facts," such as that fewer than 6% of Americans earned as much as Hewitt did supervising 12 to 14 offshore oil and gas workers.

"For a statute designed to elevate the workingman, the majority's result seems counterintuitive, and in fact it is incorrect," she wrote.

The case is Hewitt v. Helix Energy Solutions Group, Incorporated, 5th U.S. Circuit Court of Appeals, No. 19-20023.

For Hewitt: Ed Sullivan of Oberti Sullivan

For Helix: Carter Crow of Norton Rose Fulbright

Read more:

Daily paid oil rig worker not salaried per FLSA, owed OT – 5th Circuit

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.