     Case: 13-40824   Document: 00512697127     Page: 1   Date Filed: 07/14/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                          Fifth Circuit

                                                                         FILED
                                                                       July 14, 2014
                                 No. 13-40824
                                                                      Lyle W. Cayce
                                                                           Clerk
KEVIN JOHNSON, Individually and on behalf of similarly situated
individuals; BRAD SMITH, Individually and on behalf of similarly situated
individuals,

                                           Plaintiffs–Appellants
v.

HECKMANN WATER RESOURCES (CVR), INCORPORATED; COMPLETE
VACUUM AND RENTAL, L.L.P.,

                                           Defendants–Appellees




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      The district court granted Defendants–Appellees’ motion for summary
judgment, finding that they did not violate the overtime wage requirements of
the Fair Labor Standards Act (“FLSA”) by using a Monday through Sunday
workweek to calculate overtime compensation. We affirm.
         I.   FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiffs–Appellants Kevin Johnson (“Johnson”) and Brad Smith
(“Smith”) (collectively “Appellants”) filed suit against their former employers,
Defendants–Appellees Heckman Water Resources (CVR), Inc. (“HWR”) and
Complete Vacuum and Rental, L.L.P. (“CVR”) (collectively “HWR/CVR”),
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                                 No. 13-40824
seeking unpaid overtime compensation pursuant to the FLSA, 29 U.S.C.
§§ 201–219.
      Appellants worked for CVR, which later became HWR. At all relevant
times, Appellants were classified as non-exempt employees under the FLSA
and were paid hourly wages.          They worked twelve-hour shifts for seven
consecutive days beginning every other Thursday. Smith’s shift began at 6:00
a.m., and Johnson’s at 6:00 p.m. HWR/CVR paid its employees bi-weekly and
used a Monday through Sunday “workweek” to calculate overtime under the
FLSA.   Accordingly, each of Johnson’s two-week pay periods reflected the
following hours:

        Week       M      Tu    W       Th    F     Sa      Su    Total

           1                            6    12     12      12     42

           2       12     12    12      6                          42

And each of Smith’s two-week pay periods reflected the following hours:

        Week       M      Tu    W       Th    F     Sa      Su    Total

           1                            12   12     12      12     48

           2       12     12    12                                 36

Based on these hours, HWR/CVR compensated Johnson for four hours of
overtime per pay period, and Smith eight hours.
      In their Complaint, Appellants asserted that their workweek under the
FLSA should have begun on Thursday and ended on Wednesday, thereby
entitling each to forty-four hours of overtime compensation per paycheck. On
summary judgment, the district court held that HWR/CVR did not violate the
FLSA by calculating the Appellants’ hours based upon a Monday through
Sunday workweek. The district court granted summary judgment in favor of
HWR/CVR and entered final judgment. Appellants timely appeal.

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                                  No. 13-40824
         II.     JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction over Appellants’ FLSA claims
pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 216(b). Because this is an appeal
of a final judgment of a district court, this Court has jurisdiction under 28
U.S.C. § 1291.
      This Court reviews the district court’s grant of summary judgment de
novo, considering all facts in the light most favorable to the non-moving party.
Meza v. Intelligent Mex. Mktg., Inc., 720 F.3d 577, 580 (5th Cir. 2013).
Summary judgment is appropriate if the movant has shown “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
                           III.   DISCUSSION
      The FLSA provides that “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the regular rate at
which he is employed.” 29 U.S.C. § 207(a)(1). An employee bringing an action
for unpaid overtime compensation must first demonstrate by a preponderance
of the evidence: (1) that there existed an employer–employee relationship
during the unpaid overtime periods claimed; (2) that the employee engaged in
activities within the coverage of the FLSA; (3) that the employer violated the
FLSA’s overtime wage requirements; and (4) the amount of overtime
compensation due. See, e.g., Harvill v. Westward Commc’ns, L.L.C., 433 F.3d
428, 441 (5th Cir. 2005) (citing Anderson v. Mount Clemens Pottery Co., 328
U.S. 680, 687–88 (1946)); Newton v. City of Henderson, 47 F.3d 746, 748 (5th
Cir. 1995); accord Cash v. Conn Appliances, 2 F. Supp. 2d 884, 892–93 (E.D.
Tex. 1997).


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                                 No. 13-40824
      Once the employee establishes a prima facie case, the burden then shifts
to the employer to “come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the inference to
be drawn from the employee’s evidence.” Harvill, 433 F.3d at 441 (quoting
Anderson, 328 U.S. at 687–88).       If the employer claims “that the suing
employee is exempt from the overtime requirement,” then the employer “has
the burden of proving that the employee falls within the claimed exempted
category.” Samson v. Apollo Res., Inc., 242 F.3d 629, 636 (5th Cir. 2001).
      The sole issue on appeal is the third element of Appellants’ prima facie
case: whether HWR/CVR violated the FLSA’s overtime wage requirements by
using a Monday through Sunday “workweek” to calculate Appellants’ overtime
compensation.    Appellants contend that their workweek under the FLSA
should reflect their actual, seven consecutive day, Thursday through
Wednesday work schedule. Yet, Appellants do not direct the Court to any
authority requiring employers to establish a workweek in this manner, nor
have we found any such authority. For the reasons that follow, we hold that
the FLSA does not impose such a requirement.
      To begin, the FLSA does not define the term “workweek.”                The
Department of Labor (“DOL”), however, has promulgated a regulation
pursuant to the FLSA:
      An employee’s workweek is a fixed and regularly recurring period
      of 168 hours—seven consecutive 24-hour periods. It need not
      coincide with the calendar week but may begin on any day and at
      any hour of the day. For purposes of computing pay due under the
      Fair Labor Standards Act, a single workweek may be established
      for a plant or other establishment as a whole or different
      workweeks may be established for different employees or groups
      of employees. Once the beginning time of an employee’s workweek
      is established, it remains fixed regardless of the schedule of hours
      worked by him. The beginning of the workweek may be changed


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                                       No. 13-40824
       if the change is intended to be permanent and is not designed to
       evade the overtime requirements of the Act.
29 C.F.R. § 778.105; see 29 U.S.C. § 259 (granting the DOL authority to
promulgate necessary rules, regulations or other orders under the FLSA);
Meredith v. Time Ins. Co., 980 F.2d 352, 357 (5th Cir. 1993) (citing Robertson
v. Alexander Grant Co., 798 F.2d 868 (5th Cir. 1986)) (noting the binding effect
of the DOL’s regulations).
       Nothing in the regulation itself requires HWR/CVR to use Appellants’
proposed workweek.           In Appellants’ view, a Monday through Sunday
workweek violates the FLSA because they have “always” worked Thursday
through Wednesday and “different workweeks may be established for different
employees or groups of employees” under 29 C.F.R. § 778.105. But this part of
the regulation uses the term “may” and, thus, is clearly permissive rather than
mandatory. The regulation does not require an employer to establish different
workweeks for different employees. See Christensen v. Harris Cnty., 529 U.S.
576, 587–88 (2000) (“The [term ‘may’] indicates that [the DOL’s] command is
permissive, not mandatory.”).
       Moreover, a DOL opinion letter, which may have “controlling weight”
when interpreting its own ambiguous regulation, suggests that HWR/CVR is
in compliance with the FLSA. See Belt v. Emcare, Inc., 444 F.3d 403, 415–16
(5th Cir. 2006) (affording “controlling weight to the DOL’s position adopted in
the 1974 opinion letter” interpreting its own ambiguous regulation). 1 In the
opinion letter, an employer requested an opinion regarding “whether the use



       1 In its brief, HWR/CVR assumes the opinion letter is afforded Skidmore deference.
See Christensen, 529 U.S. at 587 (“[I]nterpretations [of a statute] contained in formats such
as opinion letters are ‘entitled to respect,’” under Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944), “but only to the extent that those interpretations have the ‘power to persuade.’”). We
need not decide how much weight to give the opinion letter here because we reach the same
outcome regardless.
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of a nine-day, compressed workweek schedule is in compliance with the
[FLSA].” Wage & Hour Division, U.S. Dep’t of Labor Op. Ltr. (Jan. 16, 2009),
2009 DOLWH LEXIS 20, at *1 (the “Opinion Letter”). The employer had a
two-week pay period, within which “employees work nine hours per day
Monday through Thursday and work eight hours on one of the two Fridays.”
Id.    Had the employees’ workweeks coincided with their actual Monday
through Friday work schedule, their two-week pay period would have reflected
the following hours:

          Week       M        Tu       W       Th       F     Sa       Su    Total

             1       9        9        9       9         8                       44

             2       9        9        9       9                                 36

The employer, however, proposed that the workweeks would begin at 12:30
p.m. each Friday, even though each employee started work at 8:30 a.m. Id. at
*2. Thus, an employee’s two-week pay period under the employer’s proposed
workweeks would appear as follows:

       Week      F       Sa       Su       M        Tu        W        Th    F        Total

         1       4                         9        9         9        9               40

         2                                 9        9         9        9     4         40

The DOL found that the employer’s proposed workweeks complied with the
FLSA because they “are fixed, consist of 168-hour periods, and employees will
be paid for any hours they work over forty in that specified period.” Id. at *3–
4.
       Here, like the employees’ actual work schedule in the Opinion Letter, the
Appellants’ actual work schedule spanned two workweeks, thereby reducing
the potential amount of overtime wage compensation. Nevertheless, like the
workweek approved by the DOL in its Opinion Letter, HWR/CVR’s Monday

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                                       No. 13-40824
through Sunday workweeks were fixed, consisted of 168-hour periods, and the
Appellants’ were paid for any hours they worked over forty in that specified
period. The Opinion Letter, at the very least, persuades us that HWR/CVR did
not violate the FLSA. 2
       The Eighth Circuit’s opinion in Abshire v. Redland Energy Services,
L.L.C., 695 F.3d 792 (8th Cir. 2012), which involved nearly identical facts to
those here, provides further support. The plaintiffs in Abshire worked twelve-
hour shifts for seven consecutive days, followed by seven days off. Id. at 793.
Because their seven consecutive day work schedule spanned two workweeks,
they were paid less overtime compensation than if their workweek had
coincided with their actual work schedule.              See id. at 794.       Under these
circumstances, identical in all relevant respects to the present Appellants, the
Abshire plaintiffs similarly argued that they actually worked at least eighty-
four hours each workweek and, thus, were entitled to more overtime
compensation than they were paid. See id.
       The Eighth Circuit rejected the plaintiffs’ argument, reasoning that “an
employer’s right to establish a workweek [is] ‘well-settled.’”                  Id. at 796
(discussing Kerbes v. Raceway Assocs., LLC, 961 N.E.2d 865 (Ill. App. Ct.
2011)). The court explained that the FLSA, “standing alone, does not require
that the workweek begin on any given day of the week.” Id. at 794–95 (quoting
Blasdell v. New York, No. 91-CV-1014, 1992 U.S. Dist. LEXIS 20921, at *6
(N.D.N.Y. Sept. 8, 1992)). The court further noted:


       2 The Appellants’ reliance on the Opinion Letter to the contrary is misplaced. The
Opinion Letter states that “[t]he FLSA sets a single workweek as the standard length of time
used to determine if an employee is due overtime. It does not allow for the averaging of hours
over two or more weeks.” 2009 DOLWH LEXIS 20, at *2–3. Citing this excerpt, Appellants
contend that “[e]ffectively, what the opinion letter says is[,] an employer is not to do what
[HWR/CVR] did to [Appellants].” As the district court correctly found, however, HWR/CVR
was not averaging workweeks; each Monday through Sunday workweek was fixed and stood
alone. Thus, the opinion letter does not suggest that HWR/CVR violated the FLSA.

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                                   No. 13-40824
        Consistent with the plain language of this regulation, numerous
        federal and state courts have concluded that an employer does not
        violate the FLSA merely because, under a consistently-designated
        workweek, its employees earn fewer hours of overtime than they
        would if the workweek was more favorably aligned with their work
        schedules.
Id. at 794–95 (collecting cases). “Thus, a schedule whereby an employee’s
actual work schedule is split between two workweeks does not violate the
[FLSA].” Id. at 796 (quoting Kerbes, 961 N.E.2d at 872).
        In light of the plain language of 29 C.F.R. § 778.105, the persuasive value
of the Opinion Letter, and the reasoning in Abshire and the authorities cited
therein, we agree with our sister circuit. Under the FLSA, an employer has
the right to establish a workweek. See Abshire, 695 F.3d at 796 (citation
omitted). An employer is not required to begin the workweek on any given day.
See 29 C.F.R. § 778.105 (“[An employee’s workweek] need not coincide with the
calendar week but may begin on any day and at any hour of the day.”). The
mere fact that an established workweek does not maximize an employee’s
overtime compensation does not, standing alone, violate the FLSA.              See
Abshire, 695 F.3d at 794; see also Opinion Letter, 2009 DOLWH LEXIS 20, at
*3–4.    Rather, the FLSA requires only that a workweek be “a fixed and
regularly recurring period of 168 hours—seven consecutive 24-hour periods.”
29 C.F.R. § 778.105.        HWR/CVR has complied with this requirement,
notwithstanding the fact that Appellants’ actual work schedule spanned two
workweeks thereby reducing their potential overtime compensation.
                            IV.    CONCLUSION
        For the reasons aforementioned, we AFFIRM the district court’s grant of
summary judgment.




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