Big Chills and Strong Wills

By: Kelly Warren Moore

Iwas born in the Midwest, and most of my extended family still lives there, so I am not unaccustomed to the hazards of winter weather. When we were kids, visiting my grandparents on the Nebraska plains was an adventure. We would almost always encounter icy roads and treacherous driving conditions on the way there from our home in Corpus Christi. Mom and Dad were prepared with blankets in the car and plenty of water and food for the drive, “just in case.” Once we got to my grandparents’ old farmhouse, there was indoor plumbing, but still a working outhouse. My grandmother’s gas range was almost always on from dawn until after supper, so the kitchen was warm no matter how frigid it was outside. There was a gas heater in the central room of the house downstairs, which kept things warm enough, but we still wore heavy socks and sweaters all during the day. At night, we’d go upstairs to the bedrooms. The door to upstairs was kept closed during the day to conserve the heat downstairs but open at night so that some heat would make its way to those bedrooms, and there were piles of grandma’s homemade quilts and heavy woolen blankets on all of the beds.

My sister and I shared a bedroom, and we’d race into our pajamas and under those covers as fast as we could to preserve body heat. I can remember struggling to pull the heavy bed covers up far enough to jump in, and for the first few minutes, it would feel like their weight might crush me once I was under them. But once I fell asleep, they kept me warm and feeling secure all night. (I haven’t yet succumbed to the siren calls of the advertisements for “weighted blankets’’ that seem to be everywhere these days, but I certainly do understand their appeal, I learned about that firsthand!)

Those experiences, along with 15 or so years as a grown woman living in the Northeastern United States, have taught me how to get along, survive, and even thrive in cold weather. I get excited when there’s the annual once or twice a year “severe winter weather” alert, planning what long and labor-intensive, delicious comfort food I’m going to make, what books I want to read and movies I want to watch should we get the rare South Texas “snow day.” So, once we started hearing about this potential cold-weather blast just after Valentine’s Day, we took it all in stride. We had just brought two Labrador pups home with us a few weeks before, and both my husband and I have been working from home, so there wasn’t going to be any worry about how our work travel might be impacted or what meetings would be canceled. There was plenty of food in the refrigerator and freezer, and the new puppies’ first experience with cold weather was going to be fun.

Little did we know, this was not going to be just any ordinary winter-weather experience. We saw the horrendous footage of massive car pile-ups in the DFW metroplex, and then as the cold moved further south, we heard about snow and ice from our for-

mer Austin neighbors. But, we were now right on Aransas Bay in Rockport. Surely, the cold wouldn’t last long here. It never does! Boy, were we wrong. The cold came quickly, and temperatures plummeted. We even had snow! We realized that most of our plants would likely not survive more than a day or two of this kind of cold. But things were still fine. We had plenty of food and running water and internet.

Until we didn’t.

When the lights went out and the normal hum of a working, modernday home went quiet, we took it in stride. Demand was surely off the charts, but adjustments would be made, and after a few hours, we’d surely be back up and running, we thought. So, we played with the dogs, and of course, our cell phones were still working, so we could check on our family and friends and peruse social media and all the rest. But as

the hours went on and the temperature in our circa 1870 home started to drop, I went to the guest room and dug out the treasured heavy quilt I’d inherited from my grandmother and the warm, woolen burnt orange and white afghan my mother had crocheted for me before I went to college. I found some other assorted blankets around and laid them out across our bed. I assembled a bunch of candles as it became clear that it was going to be a cold, dark night inside and out. Our puppies, my husband said, had been overheard whispering to themselves, “I sure hope this is just a foster family and that our real family can afford electricity!” At one point that week, the interior temperature of our home was 31°. I thought so often of my grandparents that week and the way they not just survived, but thrived, despite lacking almost all of the modern comforts that I consider necessities and take for granted today. I feel grateful that their DNA is mine, and it gives me strength and courage.

When our water suddenly cut off the second day, that’s when we started to understand that this was going to get a lot less pleasant as time passed. We hadn’t had a need to go anywhere but then thought we should probably fill the cars up with gas in case of an emergency, plus we could use our cars to charge our phones and warm-up or even sleep in them if need be. We bundled up the dogs and decided we would drive around and check things out just to get out of the house. We stopped at our neighborhood gas station, out of gas. The next one, out of gas.

Memories of the early aftermath of Hurricane Harvey came flooding back. No electricity means no ATM machines or working credit card machines. Some stores and businesses had generators, but that wasn’t guaranteed. We did find a station that had some gas, so we filled up. Word started to spread that this power outage of a few days was likely going to be “significantly longer.” What the heck did that mean? No electricity, no water, no heat. For days on end! I really started to understand the survival instinct that starts to kick in during extreme times. Unlike during the oppressive late-summer heat of Harvey’s aftermath, the entire outdoors could serve as our refrigerator and freezer, so we moved meat and other perishables into coolers on our front porch and back patio. By a stroke of luck, we were in the middle of a kitchen renovation, so our contractor had installed a portable toilet for the crew at the end of our driveway. (I don’t need to go into detail about why that was important, I’m sure.) We started to hear stories of grocery stores being emptied and supplies being shorter than at the beginning of the pandemic. I went to our local HEB to get a few things and was astonished at the bare shelves, emptied meat section, and empty freezers.

After the initial shock and panic about the possibility of days or weeks like this, it was remarkable how we all adapted and began to accept reality and start to figure out how to compensate for it. Living through all of the atrocities of 2020, with its lockdowns and unrest and fear-mongering, actually helped prepare our mindset for “making the best of it.” Living on the Texas coast means being prepared for tropical storms and hurricanes and oppressive heat, not bitter cold. As my husband, a career technologist likes to say, “There are two kinds of people. Those who have a backup plan, and those who eventually do.” So now we’ll have a checklist for winter weather in addition to our hurricane preparedness routine.

As I reflect now, from the comfort of my back deck on a warm spring morning, watching the hummingbirds buzz around our feeders, most of our non-dead plants coming back to verdant life, my husband doing yard work and the dogs playing in the yard, the most miserable times of the past few years — devastating damage and loss from Hurricane Harvey, the uncertainty and fear when a family member was in crisis, and the devastation and chaos wrought by the fear of a virus — seem somehow distant and muted. I marvel at the resilience not only of nature but of the human spirit. At some point in our lives, we will all experience some sort of devastation. It might come in the way of the destruction of physical property, the serious illness or death of loved ones, or terrible accidents. Without the perspective of that type of loss, the temporary loss of our modern comforts can also seem like devastation.

Through loss and fear and discomfort, there is something in our souls that silently whispers, “I don’t want to quit.” So we find ways, big and small, to continue moving forward, to laugh, to find connection with others, to survive. That is God’s grace, and in those times when it feels like He might have just had enough of us and moved on, He sends a sunrise or the first green shoots of long-forgotten daffodils or the discovery of a nest of wrens that has been carefully and intricately woven into a hanging basket right in front of you that you never noticed until you heard the babies chirping.

There are more than enough very valid reasons to be outraged about how the corruption of our various systems of government has caused disastrous consequences and irreparable harm to so many. Accountability for ineptitude or negligence seems to be a relic of another era. I hope, but don’t expect, that the various causes of a disastrous man-made loss of life-giving and life-saving electricity by the entity entrusted with that immense responsibility will be uncovered and repaired. I hope our kids go back to school. I hope our elections can have proper integrity and trust. I hope our country turns around. But I cannot allow myself to be consumed with rage about any of those things all the time, and I won’t express any more of it here.

We have been through much, and we will go through more. Every disaster changes our lives in different ways, and things are never the same afterward. God’s grace will give us strength and courage to move on and thrive if only we ask for it, accept it, and give it to others. That is ultimately how we get through everything and how we always have.

God’s grace will give us strength and courage to move on and thrive if only we ask for it, accept it, and give it to others

Can Oil Field Workers be Paid a Daily Salary and Still be Exempt from Overtime?

By: Annette Idalski

The last two years have brought uncertainty to the issue of whether oilfield workers paid on a day-rate compensation plan may be properly classified as exempt from overtime under the Fair Labor Standards Act (FLSA). In a series of decisions from August 2019 to March 2021, the Fifth Circuit attempted to clarify whether a day rate is a salary under the FLSA. But, the barrage of issues and withdrawn decisions present a legal quagmire for employers seeking to make proper classification decisions. This article clarifies the law for employers seeking to maintain exemptions from overtime for certain oilfield workers.

Exempt workers do not have to be paid overtime premiums for any hour worked over 40 in a single workweek. Some of the most common include the executive, administrative, and highly compensated exemptions. Each of these exemptions incorporates a salary basis test – meaning that the exemption cannot be established unless the employee is also being paid on a salary basis.

Federal regulations define “salary basis” as a predetermined amount constituting all or part of the employee’s compensation which is not subject to reduction because of variations in the quality or quantity of the work and which is received on a weekly or less frequent basis. However, what if an employee’s compensation is computed with respect to daily work rather than work performed on a weekly or monthly basis? In other words, can an employee paid solely a day rate basis satisfy the salary basis test?

The Fifth Circuit first attempted to answer this question in Faludi v. United States Shale Solutions decided on August 22, 2019 (Faludi I). In Faludi I, the Fifth Circuit determined that Faludi — who was paid $1,000 per day for legal consulting services — satisfied the salary basis test and was properly classified as exempt under the FLSA. Specifically, Faludi I noted that the salary basis test only required that compensation be received on a weekly or less frequent basis rather than calculated on a weekly or less frequent basis. Thus, because Faludi was guaranteed to receive at least $1,000 for any week in which he worked at least one day, his twice a month payment from U.S. Shale satisfied the salary basis test.

Following the Faludi decision, the plaintiff requested the case be heard en banc – if granted, this means the previous opinion is withdrawn, the case is heard by the full Fifth Circuit rather than the initial panel of judges, and a new opinion is issued. However, on February 14, 2020, rather than granting or denying the en banc request, the panel withdrew the August 22, 2019, opinion and decided the

case on separate grounds, which did not implicate the salary basis issue (Faludi II). However, the Faludi II panel did note that it took U.S. Shale’s argument that Faludi satisfied the salary basis test and was thus properly classified as exempt, as “well taken.”

The Fifth Circuit next revisited the issue on April 20, 2020, with its opinion in Hewitt v. Helix Energy Sols. Grp., Inc. (Hewitt I). In Hewitt I, the issue presented was the one ultimately sidestepped by the Fifth Circuit in Faludi II – can an employee paid a day rate satisfy the salary basis test under the FLSA? The Hewitt I panel,

in contradiction to the withdrawn holding of Faludi I and dicta within Faludi II, answered no. In reaching this conclusion, Hewitt I emphasized that a day rate employee can only determine his compensation at the conclusion of a pay period as compared to a salaried employee who receives the same amount of compensation each pay period and can thus determine his compensation before each pay period. However, Hewitt I also recognized that an employer could avoid this issue by agreeing to the length of each hitch in advance with the employee, thus allowing him to predetermine his compensation before each pay period.

On December 21, 2020, following a request for rehearing and additional briefing, the Fifth Circuit withdrew its April 20, 2020, Hewitt I opinion and issued a revised opinion (Hewitt II). In Hewitt II, the Fifth Circuit again changed course and determined employees paid a day rate can satisfy the salary basis test provided several requirements are met. These requirements are 1) a guarantee and 2) a reasonable relationship between the guarantee and the amount actually paid.

The first condition requires the worker be guaranteed a minimum weekly payment he or she can expect to receive – regardless of the hours actually worked. In other words, a guarantee that they will receive a certain amount of money per week, whether they work one day or seven days, provided that they are ready and willing to work. Hewitt II states this guarantee can be thought of as a “floor” that establishes an absolute minimum a worker can expect to be paid in any given week. The second condition requires a reasonable relationship between the above-mentioned guarantee and the amount actually paid. Hewitt II explains this requirement as establishing a “ceiling” on how much a worker can expect to work in order to earn their weekly guarantee.

Hewitt II notes that employers need to be prepared to offer more evidence of a guarantee than a pure day rate arrangement to satisfy the first prong. Of course, this is consistent with language from Hewitt I. Hewitt II also concludes that day rate employees could satisfy the reasonable relationship test but doing so requires the employee not to be paid “orders of magnitude greater than the weekly amount” he or she was guaranteed to receive. Ultimately, Hewitt II stood for the proposition that a day rate worker may be properly classified as exempt, provided that certain caveats are met.

However, the tale does not end here. On March 9, 2021, following a petition for an en banc hearing by Helix Energy, whose pay practice did not meet the requirements set forward in Hewitt II, the Fifth Circuit withdrew its December 21, 2020, Hewitt II opinion and granted oral argument before the full Fifth Circuit with a tentative date of May 24, 2021. The en-banc hearing and subsequent opinion (Hewitt III) should ultimately settle the question of whether a day rate can constitute a salary for purposes of exemptions under the FLSA.

The last two years have brought uncertainty to the issue of whether oilfield workers paid on a day-rate compensation plan may be properly classified as exempt from overtime under the Fair Labor Standards Act (FLSA)

About the authors: Annette A. Idalski is a shareholder and the National Chair of Chamberlain Hrdlicka’s Labor & Employment Practice. She may be reached at annette.idalski@chamberlainlaw. com. Brian Smith is an associate in the practice.