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

FILED January 10, 2020 No. 19-50236 Lyle W. Cayce Clerk JOSE ESCRIBANO; BRYCE MILLER; ROBERT MILLS; MICHAEL STRAWN; JAMES WILLIAMSON; AL LEBLANC,

Plaintiffs - Appellants v. TRAVIS COUNTY, TEXAS,

Defendant - Appellee

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

Before DAVIS, SMITH, and COSTA, Circuit Judges. GREGG COSTA, Circuit Judge: Whether a worker is entitled to the Fair Labor Standard Act’s time-and- a-half requirement for overtime pay is an important question for both employers and employees. Unfortunately, the answer is not always straightforward. A number of exemptions take employees outside the FLSA. Byzantine regulations define those exemptions. Informal Department of Labor guidance in the form of opinion letters also tries to clarify the exemptions. Then there can be exceptions to the exemptions. Figuring out if an exception brings the employee back under the FLSA may require looking at yet another set of regulations and agency guidance. Case: 19-50236 Document: 00515267145 Page: 2 Date Filed: 01/10/2020

No 19-50236

This FLSA case involved one of those multilayered classification determinations. The facts were not complicated, so the trial lasted less than a week. But confusion over two possible exemptions, as well as an exception to those exemptions, caused the posttrial litigation to last more than two years. The result was a ruling that the employer had established as a matter of law one element of proving the exemptions. Remaining questions about the exemptions and exception would have to be decided by a jury at a second trial. But the employees elected not to pursue the new trial. Instead they put all their eggs in the appellate basket, seeking to overturn the court’s ruling that the employer had proven one element of the exemptions. Because both their procedural and substantive challenges to that posttrial ruling come up empty, we AFFIRM. I. A. Six Travis County Sheriff’s Office detectives filed this suit alleging that they were entitled to overtime pay. The County was not paying the detectives additional amounts when they worked overtime, so the only issue was whether the detectives were exempt from the FLSA. The County argued that the detectives were exempt as both executive and highly-compensated employees. 29 C.F.R. §§ 541.100(a), 541.601(c). The detectives contended that those exemptions did not apply, and even if they did, they were still entitled to overtime pay under the first-responder exception to those exemptions. 29 C.F.R. § 541.3(b). Both of the exemptions the County asserted apply only if the employees are paid on a salary basis. We will get into the details of the “salary basis” requirement later, but it generally means what its label suggests: an employee

2 Case: 19-50236 Document: 00515267145 Page: 3 Date Filed: 01/10/2020

No 19-50236 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.” Id. § 541.602(a). Paying employees on a salary basis is not the only requirement for the executive or highly-compensated-employee exemptions.