If you work a Texas rig and you are paid a flat amount per day, per job, per foot of pipe or per piece, you may well be owed overtime for hours past 40 in a workweek. The Supreme Court held in 2023 that a worker paid by the day is not paid "on a salary basis," which is a requirement of the white-collar exemptions — so the day rate that the employer treats as the reason you are exempt is often the reason the exemption fails. No Texas statute requires a private employer to pay overtime, so this is a federal claim under the FLSA, and the remedy is the unpaid premium plus an equal amount again in liquidated damages.
The executive, administrative and professional exemptions each require that the employee be paid on a salary basis — a predetermined amount for each pay period that does not vary with the quality or quantity of work. A daily rate varies by definition: work four days and you are paid for four. In Helix Energy Solutions Group, Inc. v. Hewitt the Supreme Court held that a tool pusher paid a daily rate of between $936 and $1,341 a day, who earned over $200,000 a year, was not paid on a salary basis and therefore was not exempt — including under the highly compensated employee test, which still requires at least $684 a week paid on a salary or fee basis.
There is a narrow way an employer can pay a daily or shift rate and still claim the exemption: it must guarantee a weekly minimum paid regardless of hours worked, and that guarantee must bear a reasonable relationship to the amount usually earned. An employer that has not set up that guarantee cannot use it after the fact.
Three errors show up again and again in Texas oilfield pay records.
The bonus left out of the regular rate. Non-discretionary bonuses, per-job pay, per-foot pay, safety and completion bonuses and production incentives are part of the regular rate on which overtime is computed. An employer that pays time and a half on the base hourly figure but leaves the bonus out has underpaid every overtime hour in that week.
Piece-rate and per-foot work treated as though no overtime is owed at all. Paying by the foot of pipe or by the job is lawful. Treating it as a reason not to pay overtime is not. For a piece-rate worker, total piece-rate earnings in the week are divided by hours worked to get the regular rate, and the overtime hours require an additional one-half of that rate.
Per diem that is really wages. A per diem that does not vary with the expense it supposedly reimburses, or that is paid for every day worked regardless of travel, may be wages that belong in the regular rate rather than an excludable reimbursement.
Federal courts in the Western, Northern and Southern Districts of Texas have conditionally certified FLSA collectives under 29 U.S.C. § 216(b) in the firm's oilfield cases, across the pay structures that actually show up in the patch: day rate, salary, pay per foot of pipe laid, pay per job, piece rate, per diem and non-discretionary bonus pay. Most of those orders were entered on the parties' joint stipulation; three were litigated to a contested ruling. None of them certified a claim under a Texas wage statute, because no Texas statute requires a private employer to pay overtime.
Day rate. In Meyer v. Blue Star Directional, LLC, Southern District of Texas, the court conditionally certified a collective of "all MWD Operators who currently or formerly worked for Defendants that were classified as employees and were paid on a salary and/or day rate basis." That is the day-rate cohort, certified as a group.
The contractor label. In Leiker v. Blue Star Directional, LLC, Southern District of Texas — a separate case against the same defendant on the other side of the same workforce — the court conditionally certified "all MWD Operators who currently or formerly worked for Defendants that were classified as independent contractors." Same job, same rigs, a 1099 instead of a W-2, and the collective was certified anyway.
Per foot and per job. In Scheriger v. Gabe's Casing & Laydown Service, Inc. and in Key Jr. v. Permian Power Tong, Inc., both in the Western District of Texas, the courts certified collectives of "all workers … who were paid on a Per-Foot of Pipe Laid or Per-Job Basis."
Bonus left out of the regular rate. In Moreno v. Silvertip Completion Services Operating, LLC, Western District of Texas, the court certified over the employer's opposition "[a]ll workers employed by Defendant in the United States in the last three years who were paid on a non-exempt basis and received Additional Pay that Defendant excluded from the regular rate to calculate overtime," and rejected the employer's attempt to shorten the class period, noting that "Defendant provided no case law for this proposition."
Piece rate and per diem. In Acuff v. Cosi Energy Services, LC, Western District of Texas, the certified collective reached non-exempt workers paid "based on the quantity of work performed (whether pay per foot, pay per job, or some other piece rate or piece work measure) or that were paid per diem, piece rate, or non-discretionary bonus pay." The same quantity-of-work class language appears in the orders entered in Gutierrez v. Butch's Rat Hole & Anchor Service, and casing and laydown crews were certified on the same footing in Chacon v. Black Star Energy Services and Pearson v. Colt Oilfield Services. A fuller list of the employers we have sued is on the site.
Casing crews, contested. In Minyard v. Double D Tong, Inc., Western District of Texas, the court first certified only Field Hands and Crew Pushers, then on reconsideration held that "[b]ecause the dissimilar job responsibilities among the class have not been shown to be relevant to Plaintiffs' FLSA allegations, they are not a barrier to conditional certification," and amended the class to all non-exempt casing workers paid on a quantity-of-work basis.
Snively & Clark v. Peak Pressure Control, LLC & Nine Energy Service, LLC, Western District of Texas, is a salary and salary-plus-bonus case rather than a day-rate case, and it is the one to read on decertification. The court conditionally certified an FLSA collective of pressure control operators in February 2016. The defendants later moved to decertify at stage two, asserting the Motor Carrier Act and highly compensated employee exemptions against the group, and the court refused. On the employer's argument that the exemption defenses required worker-by-worker inquiries, the order found the opposite: "Overall, it appears that Defendants assert the MCA and HCE defenses against most Plaintiffs and rely on a limited body of evidence to support the defenses. Therefore, each Plaintiff must undergo the same factual inquiry as to whether that Plaintiff is subject to the MCA or HCE exemption." With roughly 70 plaintiffs in the case, the court concluded: "Accordingly, the Court DENIES Defendants' Motion for Decertification."
Related work outside Texas has included Rodriguez v. Peak Pressure Control, LLC & Nine Energy Service, LLC, against the same two defendants in the District of New Mexico, where a federal court certified a Rule 23(b)(3) class of pressure control operators, field service technicians and trainees paid a salary or salary plus bonus under the New Mexico Minimum Wage Act — "Motion in Support of Rule 23 Class Certification (ECF No. 30) is GRANTED and the above class is CERTIFIED pursuant to Fed. R. Civ. P. 23(b)(3)" — appointed Jack Siegel, among other counsel, as class counsel, and the same day granted partial summary judgment as to the inapplicability of the administrative exemption.
Jack Siegel has filed more than 100 federal overtime lawsuits in 25 federal districts across 20 states and obtained 50+ class and collective certifications in 19 federal judicial districts across 14 states, as lead counsel on the firm's cases. The firm has recovered more than $100 million for workers, and it has never represented an employer in a wage case.
Prior results do not guarantee or predict a similar outcome in any future matter. These are results in other people's cases. Each case is decided on its own facts, its own record and its own procedural posture. Conditional certification and class certification are procedural rulings about whether a case may proceed as a group action; they are not findings of liability and they are not an award of money. This website contains attorney advertising.
Texas is in the Fifth Circuit, which since 2021 has not used the familiar two-step conditional-certification process. Under Swales v. KLLM Transport Services, L.L.C., the district court identifies what facts and legal considerations are material to whether the workers are similarly situated, authorizes preliminary discovery on those points, and then decides the scope of the collective once, instead of issuing lenient first-stage notice and revisiting the question on a later decertification motion. Swales is circuit law and governs in Texas, Louisiana and Mississippi.
That makes the written record matter early. The material question in a day-rate or per-foot case is usually the pay structure, and pay structure is documented: a rate sheet, a pay code, a bonus plan. Where a whole crew is on the same day rate or the same per-foot schedule, those are the documents the question turns on. The firm's Texas oilfield certifications described above were entered between 2016 and 2020, under the framework then in force.
Usually not. The Supreme Court held in Helix Energy Solutions Group, Inc. v. Hewitt that a daily rate is not payment on a salary basis, and salary-basis payment is required for the executive, administrative, professional and highly compensated employee exemptions. An employer can pay a daily rate and keep an exemption only by guaranteeing a weekly minimum that is paid regardless of hours and bears a reasonable relationship to usual earnings.
Possibly yes. High earnings do not themselves create an exemption. The highly compensated employee test requires total annual compensation of at least $107,432, but it also still requires that at least $684 a week be paid on a salary or fee basis — which is exactly how Helix came out, for a worker earning over $200,000 a year.
Your total earnings for the week, including the piece-rate and per-job pay, are divided by the hours you actually worked to get your regular rate. You are then owed an additional one-half of that regular rate for every hour over 40. Piece-rate pay is lawful; treating it as a reason to pay no overtime is not.
Yes, and it is one of the most common violations in the patch. Non-discretionary bonuses, safety and completion bonuses, per-job pay and production incentives belong in the regular rate. Leaving one out understates every overtime hour in the week it was earned.
No. Whether you are an employee under the FLSA turns on the economic reality of the relationship, not the label on the paperwork or the form you were handed. MWD operators classified as independent contractors have been conditionally certified as an FLSA collective in the Southern District of Texas.
A title decides nothing. The executive exemption requires, among other things, that managing be the primary duty and that the worker's recommendations on hiring and firing carry particular weight. Helix concerned a tool pusher who supervised a crew and was still held non-exempt, because the pay method failed the salary-basis test before the duties were ever reached.
It is a real exemption and it is raised often in this industry, for employees whose work affects the safety of motor vehicles in interstate commerce. It is also fact-bound, and it does not follow from the fact that a crew drives trucks. In Snively the employer asserted the Motor Carrier Act and highly compensated employee exemptions against the collective on what the court described as a limited body of evidence, and the court held that each plaintiff would undergo the same factual inquiry and denied decertification.
Two years from the date the claim is filed, or three years if the violation was willful. Each workweek is treated as a separate violation.
Attorney responsible: Jack L. Siegel, Dallas, Texas.
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Attorney advertising. Jack L. Siegel of Siegel Law Group PLLC, Dallas, Texas, is responsible for this content.
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