IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50350

JOSEPH HOBBS, Individually And On Behalf Of All Others Similarly 

Situated; DRAKE FEENEY, Individually And On Behalf Of All Others 

Similarly Situated, 

 Plaintiffs - Appellees

v.

PETROPLEX PIPE AND CONSTRUCTION, INCORPORATED, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before JOLLY, SMITH, and COSTA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Joseph Hobbs and Drake Feeney are former pipe welders for Petroplex 

Pipe & Construction, Inc. Hobbs and Feeney brought this suit in federal 

district court, alleging that although they often worked more than forty hours 

per week for Petroplex, they were not paid overtime as required by the Fair 

Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (FLSA). Following a bench 

trial, the district court held that Petroplex was liable to Hobbs and Feeney 

under the FLSA. Petroplex appeals, contesting only the district court’s holding 

that Hobbs and Feeney were employees instead of independent contractors. 

We affirm.

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2020

Lyle W. Cayce

Clerk

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I.

Petroplex is an oilfield contractors and services company located in 

Midland, Texas. Pioneer Natural Resources is one of Petroplex’s clients for 

whom it provides its services. Beginning in February 2014, Pioneer asked 

Petroplex to provide pipe welding services at the locations where Petroplex was 

constructing oil treatment and storage facilities for Pioneer. Petroplex then 

hired Sam Hardcastle and Joseph Hobbs to perform pipe welding services. 

Although Hobbs and Hardcastle were initially hired as W-2 employees, 

Petroplex later reclassified them as independent contractors. This change in 

classification occurred after discussions between the pipe welders and 

Petroplex’s president, T.R. Bridges. But nothing in the record indicates that 

the pipe welders ever signed a contract with Petroplex. Subsequently, Drake 

Feeney began to work as a pipe welder for Petroplex. Feeney worked for 

Petroplex from July 2014 to October 2014 and then left to work closer to home. 

Feeney returned to work for Petroplex in January 2016, and this time stayed 

with the company until June 2016. During his fourteen-month absence from 

Petroplex, Feeney provided pipe welding services to other companies. Hobbs 

worked continuously for Petroplex from February 2014 until January 2017. 

Although Hobbs and Feeney worked primarily as pipe welders, in the 

course of the workweek, they would sometimes perform structural welding, 

complete maintenance jobs, and operate forklifts for Petroplex. Depending on 

the year, Petroplex paid the pipe welders at a straight hourly rate of either $70 

or $80. The pipe welders testified that they did not negotiate their rate of pay. 

Typically, the pipe welders would work from 7:00 AM to 5:00 PM six days a 

week. And while they worked for Petroplex, neither Hobbs nor Feeney 

provided pipe welding services to other companies. Hobbs and Feeney, 

however, both testified about instances where they missed work for weeks at a 

time.

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The welders supplied their own trucks, welding machines, beveling 

machines, grinders, torches, torch hoses, leads, jack stands, hand tools, levels 

and squares. The welders were also responsible for their own meals and 

housing. For this purpose, both Hobbs and Feeney purchased campers to live 

in while working for Petroplex. In their tax returns, Hobbs and Feeney listed 

themselves as self-employed and took thousands of dollars in deductions on 

work-related expenses. Petroplex paid for and supplied the welders with 

consumables, such as oxygen acetylene for coating, welding rods, buffing 

wheels, grinding disks, face shields, and sanding pads. Petroplex would 

typically spend about $500,000 on all of its equipment at each construction 

site. Petroplex would also compensate the pipe welders for the time they spent 

undergoing testing and certification by Pioneer.

Petroplex set the pipe welders’ hours, and if they showed up late, sent 

them home for the day. The pipe welders also took their breaks and lunches 

at the same time as Petroplex’s employees. But unlike Petroplex’s employees, 

Hobbs and Feeney did not receive an employee handbook or uniforms. At first, 

Bridges was the person who oversaw the pipe welders and gave them 

instructions, such as which job assignments to complete each day. Over time, 

however, Hardcastle took on a supervisory role. After assuming this role, 

Hardcastle would divide up job assignments among the pipe welders, pull 

measurements on the welds, provide diagrams for the pipe welders, and send 

the pipe welders home when they showed up to work late. Hobbs’s relationship 

with Petroplex ended after he showed up to work late and got into an argument 

with Hardcastle over Hobbs’s attitude. Feeney’s second stint with Petroplex 

ended after Hardcastle indicated that Petroplex was running out of work for 

him.

Hobbs and Feeney filed a FLSA collective action, alleging that Petroplex 

improperly classified them as independent contractors and that they should 

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have been paid overtime for hours worked in excess of forty hours per week.1

The district court conducted a bench trial on September 4, 2018. Following the 

bench trial, the district court issued findings of fact and conclusions of law in 

which it held that the pipe welders were employees of Petroplex and that 

Petroplex was liable for violating the FLSA. The district court then entered 

final judgment in the amount of $101,600 in favor of the pipe welders. This 

timely appeal followed.

II.

The FLSA requires employers to pay employees at least one-and-one-half 

times the regular hourly rate for hours worked in excess of forty hours per 

week. See 29 U.S.C. § 207(a)(1). Independent contractors are exempt from 

such requirement. In determining employee/independent contractor status, 

the “relevant question is whether the alleged employee so economically 

depends upon the business to which he renders his services, such that the 

individual, as a matter of economic reality, is not in business for himself.” 

Thibault v. Bellsouth Telecomms., Inc., 612 F.3d 843, 845 (5th Cir. 2010). This 

court utilizes “five non-exhaustive factors” to guide this inquiry. See Hopkins 

v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008). These “economic 

realities” or Silk2 factors are: “(1) the degree of control exercised by the alleged 

employer; (2) the extent of the relative investments of the worker and the 

alleged employer; (3) the degree to which the worker’s opportunity for profit or 

loss is determined by the alleged employer; (4) the skill and initiative required 

in performing the job; and (5) the permanency of the relationship.” Id. “No 

single factor is determinative. Rather, each factor is a tool used to gauge the 

 

1 Although several plaintiffs opted in to the collective action, the only plaintiffs 

remaining at the time the district court issued its findings of fact and conclusions of law were 

Hobbs, Feeney, and Benjamin Humphrey. The district court found that Humphrey’s claims 

fell outside the applicable statute of limitations, a finding that is not challenged on appeal. 

2 See United States v. Silk, 331 U.S. 704 (1947). 

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economic dependence of the alleged employee, and each must be applied with 

this ultimate concept in mind.” Id. (internal citations omitted). 

Because the district court resolved this case following a bench trial, we 

review the district court’s historical findings of fact for clear error. See Brock 

v. Mr. W. Fireworks, Inc., 814 F.2d 1042, 1044 (5th Cir. 1987) (citing Fed. R. 

Civ. P. 52(a)). The district court’s findings as to the Silk factors are “based on 

inferences from fact and thus are questions of fact” that are also subject to the 

clearly erroneous standard of review. See id. But the district court’s “ultimate 

determination of employee status is a finding of law subject to de novo

consideration by this court.” Id. at 1045.

“[A] finding is ‘clearly erroneous’ when although there is evidence to 

support it, the reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed.” Anderson v. City of 

Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum 

Co., 333 U.S. 364, 395 (1948)). However, “[i]f the district court’s account of the 

evidence is plausible” in the light of the entire record, this court “may not 

reverse it even though convinced that had it been sitting as the trier of fact, it 

would have weighed the evidence differently.” Id. at 573–74.

III.

The district court found, based on the underlying historical facts, that 

four of the Silk factors—control, investment, opportunity for profit and loss, 

and permanency—weighed in favor of employee status. The remaining 

factor—skill and initiative—it found to be neutral. We review those findings, 

keeping in mind that Brock requires us to afford the district court significant 

deference. 

A.

We first consider the degree of control Petroplex exercised over the pipe 

welders. “Control is only significant when it shows an individual exerts such 

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control over a meaningful part of the business that [the individual] stands as 

a separate economic entity.” Parrish v. Premier Directional Drilling, L.P., 917

F.3d 369, 381 (5th Cir. 2019) (quoting Usery v. Pilgrim Equip. Co., Inc., 527 

F.2d 1308, 1312–13 (5th Cir. 1976)). The relevant determination is whether 

“the worker has a viable economic status that can be traded to other 

companies, keeping in mind that lack of supervision of the individual over 

minor regular tasks cannot be bootstrapped into an appearance of real 

independence.” Id. (cleaned up). 

The district court found that this factor weighed in favor of employee 

status. This finding was not clearly erroneous. It is true, however, that

Petroplex did lack control over certain aspects of the pipe welders’ work. For 

example, Pioneer determined the specifications for the pipe welders’ work and 

inspected the welding, not Petroplex. But overall, the record supports the 

district court’s finding that the degree of control factor weighs in favor of 

employee status. First, there is evidence that Petroplex regularly assigned the 

pipe welders’ specific tasks and the hours to be worked. Petroplex set the 

welders’ schedule and typically required them to work from 7:00 AM to 5:00 

PM. The welders were sometimes required to work late, and Hobbs testified 

that he did not turn down assignments or refuse requests to stay late for fear 

it could lead to termination of his employment. Hobbs additionally testified 

that, if the pipe welders showed up to work late, they would be sent home for 

the day. And unlike the workers in Parrish, the welders testified that they 

never refused to work on assigned projects. Cf. id. at 382 (degree of control 

factor favored independent contractor status where workers could turn down 

projects without repercussion). Although Petroplex argues that Bridges’ 

testimony supports the opposite conclusion, the district court was entitled to 

credit the welders’ testimony instead of Bridges’. We acknowledge that both 

Hobbs and Feeney testified about instances where they missed work for weeks 

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at a time, which militates against employer control of their schedule. Yet, this 

testimony does not sufficiently undermine the district court’s finding that 

Petroplex significantly controlled the workers’ schedule for us to conclude that 

the finding was clearly erroneous. Petroplex’s control over the welders’ 

schedule, combined with evidence that it would discipline the welders for 

arriving to work late, suggests employee status. See Carrell v. Sunland 

Constr., Inc., 998 F.2d 330, 334 (5th Cir. 1993) (“Several facts weigh in favor of

employee status; for example, Sunland dictated the Welders’ schedule, 

including the timing of their breaks[, and] Sunland assigned the Welders to 

specific work crews . . . .”).

And the district court’s specific finding that Hardcastle, “with the 

consent of Petroplex—and at its initial direction—” assigned tasks, disciplined 

the pipe welders when they arrived late, and provided the pipe welders more 

simplified diagrams is supported by the record. Hardcastle testified that, 

although Bridges initially assigned jobs to the pipe welders, at some point, 

those duties shifted to him. Further, Hardcastle testified that he had authority 

to take on supervisory duties, and Bridges testified he was aware Hardcastle 

was acting as a supervisor. Thus, it was reasonable for the district court to 

infer that Hardcastle provided the welders’ instructions at the direction of 

Petroplex. And we agree with the district court that Hardcastle’s diagrams 

provided more specific instructions than the blueprints and well plans 

discussed in Thibault and Parrish. Unlike the alleged employers in those 

cases, who provided the workers with basic outlines that did not include 

specifications, Hardcastle took Pioneer’s diagrams and provided the welders 

with more specific instructions. Parrish, 917 F.3d at 381–82; Thibault, 612 

F.3d at 847, 851. We thus conclude that Hardcastle’s provision of these 

diagrams, combined with the other evidence of his day-to-day control over the 

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pipe welders’ work, indicates that Petroplex, through Hardcastle, exercised a 

significant amount of control over the welding work.3 

Finally, we conclude that it is significant to the degree of control inquiry 

that the district court found that, at times, Petroplex assigned the pipe welders 

with tasks other than pipe welding. Despite Petroplex’s argument to the 

contrary, the district court’s finding that Petroplex assigned the welders to 

tasks other than pipe welding is not clearly erroneous. Hobbs testified that, 

although his main job was pipe welding, Petroplex assigned him to perform

work at its maintenance shop a handful of times and required him to 

sometimes drive a forklift. Similarly, Feeney testified that if pipe welding 

work was slow, Petroplex would occasionally pay him to do structural welding. 

We agree with the district court that evidence Hobbs and Feeney, at times, 

performed work other than pipe welding leans in favor of employee status. See 

Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 665, 667 (5th Cir. 1983)

(finding employee status where only fifty percent of welders’ work was 

welding). Based on the foregoing evidence, we conclude that the district court 

did not clearly err when it found the degree of control factor to favor employee 

status.

B.

We next consider the relative investments of the pipe welders and 

Petroplex. In considering this factor, “we compare each worker’s individual

investment to that of the alleged employer.” Hopkins, 545 F.3d at 344. The 

district court found that the relative investments factor weighed in favor of 

employee status. Citing both Parrish and Carrell, the district court 

 

3 Although Hardcastle testified that “on occasion” other welders would make their own 

drawings, the record is clear that Hardcastle provided the vast majority of these diagrams. 

Thus, the district court’s conclusion that Hardcastle provided these diagrams as part of his 

supervisory duties is plausible, and we will not disturb this finding on appeal.

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determined that Petroplex’s overall investment in the pipe construction 

projects, of which the record supports that the plaintiffs’ welding work was an 

important part, was relevant. Based on Parrish and Carrell, the district court 

was entitled to make that determination.4 Given the significant sums that 

Petroplex invested in those projects5—and notwithstanding the substantial 

sums invested by Hobbs and Feeney6—it was not clearly erroneous for the 

district court to conclude that this factor cut in favor of employee status. 

Moreover, the district court still would not have clearly erred even if we 

view Petroplex’s relevant investments narrowly, i.e., as confined “to the specific 

job the employee undertakes.” Thibault, 612 F.3d at 847. Here, the record 

demonstrates that Petroplex invested in the welders’ work in the following 

ways: (1) it provided a forklift to move pipes; (2) it paid for welders’ helpers to 

the tune of $14 per hour; (3) it paid, on average, $100 per day per welder in 

consumables; (4) it paid for forklift testing and safety school for the welders; 

and (5) it spent approximately $30,000 to outfit a welding shop. While those 

$14 per hour and $100 per day investments may seem insignificant at first 

blush, they add up to tens of thousands of dollars per welder when annualized 

for the fact that the welders worked, on average, from 7:00 AM to 5:00 PM six 

 

4 See Parrish, 917 F.3d at 383 (“Obviously, Premier invested more money at a drill 

site compared to each plaintiff’s investments.”); Carrell, 998 F.2d at 333 (“We further 

recognize that Sunland's overall investment in each pipeline construction project was 

obviously significant.”).

5 Petroplex would spend approximately $500,000 at each construction site. 

6 Hobbs utilized two welding trucks to provide his welding services. His first welding 

truck cost him approximately $30,000, he paid $7,000 to put a welding bed on it, and he paid 

$3,000 to put a welding machine on it. The second truck cost him $50,000, and he paid 

approximately $13,000 to put a welding machine on it. And he also spent hundreds of dollars 

on beveling machines, two grinders, and two torches. Like Hobbs, Feeney paid approximately 

$60,000 for a welding truck, $200 for a welding bed, $14,500 for a welding machine, and 

hundreds of dollars for other welding equipment. The welders were also responsible for their 

own meals and housing, and for that purpose, spent tens of thousands of dollars on campers. 

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days a week.7 When adding in the other costs above, it was not clear error for 

the district court to conclude that the amounts invested by Petroplex exceeded 

the sums Hobbs and Feeney themselves invested.

Further, even though the district court did not clearly err when it found 

this factor to weigh in favor of employee status, it still afforded this factor little 

weight in its analysis. In Parrish, 917 F.3d at 383, which also involved work 

in the oil and gas industry, we accorded the investment “factor little weight, in 

the light of the nature of the industry and the work involved.” We agree with 

the district court’s conclusion to do so here.

C.

We now turn to consider whether Petroplex controlled the pipe welders’ 

year-end opportunities for profit or loss. “In evaluating this factor, it is 

important to determine how the workers’ profits depend on their ability to 

control their own costs. For that purpose, evidence gleaned from tax returns 

can be useful.” Id. at 384 (cleaned up). This court has additionally looked to 

whether the putative employer’s control over the worker’s schedule and pay 

had the effect of limiting the worker’s opportunity, as an independent 

contractor, for profit or loss. See Cromwell v. Driftwood Elec. Contractors, Inc.,

348 F. App’x 57, 61 (5th Cir. 2009). 

The district court found that this factor weighed in favor of employee 

status because Petroplex fixed the pipe welders’ hourly rate and schedule, the 

welders’ year-end profits or losses did not depend on their ability to find other 

work, Petroplex would assign the welders other welding work when the pipe 

welding work slowed, and the pipe welders were paid the same rate without 

 

7 For example, assuming a 48-work-week year, a single welder’s helper would cost 

approximately $40,000 per year if they worked hours commensurate to the welders. And, 

again assuming a 48-work-week year, Petroplex would have spent approximately $29,000 per 

welder per year in consumables. The record is not clear on the number of weeks per year 

Hobbs and Feeney worked, however.

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respect to their level of certification. But, as Petroplex notes, other evidence 

adduced at trial suggests that the pipe welders could in some ways control their 

own opportunities for profit or loss. Specifically, there was testimony that the 

pipe welders controlled the costs of, for example, their business equipment; and

moreover, they took advantage of tax deductions for such business related 

expenses. We have previously concluded that similar evidence supported a 

finding of independent contractor status. See, e.g., Parrish, 917 F.3d at 384–

85; Thibault, 612 F.3d at 848–49.

Nonetheless, the record, as a whole, does not permit us to say that the 

district court erred when it found this factor to weigh in favor of employee 

status. Both Hobbs and Feeney testified that they never negotiated their rate 

of pay. Thus, although Bridges testified that when Hobbs and Hardcastle were 

first classified as independent contractors they negotiated their rate of pay, the 

district court’s finding that Petroplex fixed the hourly rate of pay has support 

in the record. We also find it irrelevant to the opportunity for profit or loss 

inquiry that the pipe welders could hypothetically negotiate their rate of pay 

because, under the economic realities test, “it is not what the [putative 

employees] could have done that counts, but as a matter of economic reality 

what they actually do that is dispositive.” See Brock, 814 F.2d at 1047. And 

there is ample evidence in the record to support the district court’s finding that 

the work schedule imposed by Petroplex severely limited the pipe welders’ 

opportunity for profit or loss. Feeney testified that the pipe welders regularly 

worked more than forty hours a week and that, on average, they would work 

from 7:00 AM to 5:00 PM six days a week. Hobbs and Feeney additionally 

testified that given the hours they worked for Petroplex, it would have been 

unrealistic for them to have worked for other companies. Although Hobbs and 

Feeney did testify about instances where they missed work for weeks at a time, 

they did not work for other companies during such time, which supports the 

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district court’s finding that, as a matter of economic reality, the pipe welders’ 

schedule precluded them from working for other companies. As in Cromwell, 

it is significant that the pipe welders’ work schedule for Petroplex effectively 

prevented them from engaging in outside work. 348 F. App’x at 61.

We also agree with the district court that it is important to the 

opportunity for profit or loss inquiry that, during the years they worked for 

Petroplex, the welders’ “year-end profits or losses did not depend on their 

ability to find welding work with other companies consistently or other work 

generally.” As stated, Hobbs worked exclusively for Petroplex for almost three 

years, and Feeney worked for no other company when he worked for Petroplex. 

Thus, although in the years surrounding their work for Petroplex the pipe 

welders worked for multiple companies, they are unlike the pipe welders in 

Carrell, or the cable splicers in Thibault, who supplemented their income with 

work for outside companies while they were working for their putative 

employers. Carrell, 998 F.2d at 333–34; Thibault, 612 F.3d at 849. Feeney’s 

testimony that, during downturns in the oil and gas industry, Petroplex would 

occasionally provide him with structural work and Hobbs’s testimony that he 

would sometimes work in the maintenance shop further bolster the district 

court’s conclusion that the welders’ year-end profits did not depend on their

finding outside work. To be sure, during Feeney’s fourteen-month absence 

from Petroplex, he worked for other welding companies. But this single fact 

cannot lead us to conclude that the district court committed error when it found 

the pipe welders’ year-end profits were independent from their need to find 

available welding work. Nor does it tip the scales of the opportunity for profit 

or loss factor to weigh in favor of independent contractor status. This 

conclusion is especially true in the light of Feeney’s testimony that he did not 

leave Petroplex due to a lack of available work, but instead, left because he 

“had a good opportunity to go work closer to home and less hours.” Respecting 

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the facts as the district court found them, we must say that in the light of the 

pipe welders’ economic reality, the opportunity for profit or loss factor weighs 

in favor of employee status.

D.

We will next consider the skill and initiative required of the pipe welders. 

“Greater skill and more demonstrated initiative counsel in favor of 

[independent contractor] status.” Parrish, 917 F.3d at 385. Relevant to the 

initiative inquiry is the extent of discretion the worker has over his daily tasks 

and whether he must take initiative to find consistent work. See id.

Here, the district court found that although the pipe welders were highly 

skilled, they were not required to demonstrate initiative. “Pipe welding, unlike 

other types of welding, requires specialized skills.” Carrell, 998 F.2d at 333. 

Indeed, Hobbs testified that pipe welds are “pretty complicated,” and he and 

Feeney had to learn pipe welding skills by observing other pipe welders. 

Moreover, that the pipe welders were tested and certified in pipe welding 

demonstrates that they were highly skilled workers. See id. Thus, the district 

court did not err when it found that the pipe welding work performed by the 

plaintiffs required specialized skills. 

Nor did the district court err when it found that the pipe welders’ job did 

not require them to demonstrate significant initiative. Petroplex provided the 

pipe welders with their job assignments and Hardcastle’s diagrams specified 

how the pipe welders were to complete their assigned tasks. Thus, as Petroplex 

concedes, the pipe welders’ initiative was limited once on the job. And, unlike 

the pipe welders in Carrell, during the time period relevant to this dispute, 

Hobbs’s and Feeney’s success did not depend on their “ability to find consistent 

work by moving from job to job and company to company.” Id. Instead, Hobbs 

worked steadily for Petroplex for nearly three years, and Feeney’s fourteen-

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month absence from the company was due to a desire to work closer to home, 

not lack of available work.

Although we are mindful that, in certain circumstances, a plaintiff’s 

highly specialized skills could support a finding of independent contractor 

status even absent demonstrated initiative, we are unable to say that the 

district court clearly erred in finding this factor to be neutral. As we have 

previously noted, unlike in some of our previous FLSA classification cases, 

Petroplex would occasionally pay the pipe welders for work that did not require 

them to use their highly specialized skills, which counsels against finding that 

this factor favors independent contractor status. Thus, considering the totality 

of the circumstances, and respecting the district court’s findings, we affirm the 

district court’s finding that the skill and initiative factor is neutral. 

E.

The final Silk factor to be considered is the permanency of the 

relationship. Relevant to this factor is “whether any plaintiff ‘worked 

exclusively’” for Petroplex, “the total length of the relationship,” and “whether 

the work was on a ‘project-by-project basis.’” Parrish, 917 F.3d at 387. But 

ultimately, “[t]he inferences gained from the length of time of the relationship 

depend on the surrounding circumstances.” Id. The district court found that 

this factor supports employee status.

In evaluating this factor, the district court first found that the pipe 

welders were not hired on a project-by-project basis. Although Petroplex points 

to evidence that could suggest that it hired the welders on a project-by-project 

basis, the district court’s finding to the contrary is also plausible. Petroplex 

could have up to a dozen construction projects going on at a time. Feeney 

testified that Petroplex never told him that it was hiring him for a specific 

project and that if he finished an assigned task, he would go to Hardcastle for 

his next Petroplex assignment. Hobbs testified that Petroplex would 

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sometimes move him from one of its jobs to the next Petroplex job. For 

example, if a pipe already in service cracked and needed to be repaired, 

Petroplex would occasionally pull Hobbs from a new construction project to 

complete an emergency maintenance job. This evidence is sufficient to support 

the district court’s finding that Petroplex hired the pipe welders to work on all 

its pipe welding work as needed, and not on a project-by-project basis. We are 

unpersuaded by Petroplex’s contention that it necessarily hired the pipe 

welders on a project basis because Pioneer hired Petroplex on a project basis. 

The key question is not whether Pioneer, Petroplex’s customer, used Petroplex 

on a project basis but whether Petroplex hired its welders for only specific

projects. Because evidence in the record supports the district court’s finding 

that Petroplex hired the pipe welders to complete all available welding work, 

it did not clearly err when it made this finding.

The district court also found that Hobbs and Feeney worked exclusively 

for Petroplex during the relevant time period and that the total length of the 

relationship was indicative of employee status. As we have previously noted, 

the record supports the district court’s finding that neither Feeney nor Hobbs 

worked for another company while they were working for Petroplex. Further, 

we agree with the district court that the pipe welders worked for Petroplex for 

a substantial period of time. Hobbs worked for Petroplex for almost three years 

and Feeney worked for Petroplex for four months and then six months. We 

find the length of the pipe welders’ relationship with Petroplex to more closely 

resemble the tenure of the workers in cases where we have found the 

permanency of the relationship factor to weigh in favor of employee status than 

the tenure of the workers in cases where we have found independent contractor 

status. Compare Robicheaux, 697 F.2d at 666 (“The duration of the 

relationship was from ten months to three years for each [welder]—a 

substantial period of time—and except for insignificant work elsewhere, was 

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exclusive[ ].”); with Carrell, 998 F.2d at 332, 334 (finding independent 

contractor status where average number of weeks worked for the alleged 

employer varied from approximately three to sixteen weeks per year).

We recognize that Petroplex has presented evidence that casts doubt on 

whether this factor weighs in favor of employee status; that it is unusual for 

pipe welders to work for one company for as long as the pipe welders worked 

for Petroplex, that the pipe welders testified about instances where they took 

several weeks off from work at a time, that there was a fourteen-month gap in 

Feeney’s employment with Petroplex, and that Feeney testified that he ended 

his employment with Petroplex due to what he perceived as a lack of available 

work. All of this evidence is relevant and probative of the subject. No doubt. 

Nonetheless, considering the totality of the circumstances surrounding the 

welders’ employment relationship with Petroplex, we cannot reverse the 

district court for clear error when it laid out all of the evidence and found this 

factor to favor employee status. Besides evidence that Petroplex hired the pipe 

welders to complete all its pipe welding work and that the pipe welders worked 

solely for Petroplex, there is also evidence that during downturns in the oil and 

gas industry, Petroplex used its pipe welders for jobs other than pipe welding. 

This evidence, combined with the district court’s findings that the pipe welders 

were not hired on a project basis, worked exclusively for Petroplex, and worked 

for Petroplex for a substantial period of time, demonstrates strong and 

sufficient evidence that the permanency of the relationship factor weighs in 

favor of employee status.

F.

Because the Silk factors are non-exhaustive, we will also look to other 

factors to help gauge the economic dependence of the pipe welders. Parrish, 

917 F.3d at 387. Petroplex argues that other facts indicative of independent 

contractor status are that the pipe welders did not wear uniforms, nor have 

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Petroplex vehicles, nor receive Petroplex’s employee handbook. Though we 

agree that this evidence is indicative of independent contractor status, its 

significance pales in the light of the substantial evidence of economic realities 

supporting the district court’s determination of employee status. 

Both Petroplex and the pipe welders also ask us to consider the extent to 

which the pipe welders’ work was “an integral part” of Petroplex’s business. 

Other circuits, such as the Sixth and Tenth Circuits, include this consideration 

as an enumerated sixth factor in the economic realities test. See, e.g., Acosta 

v. Off Duty Police Servs., Inc., 915 F.3d 1050, 1055 (6th Cir. 2019); Baker v. 

Flint Eng’g & Constr. Co., 137 F.3d 1436, 1443 (10th Cir. 1998). “The more 

integral the worker’s services are to the business, then the more likely it is that 

the parties have an employer-employee relationship.” Acosta, 915 F.3d at 

1055. In support of its argument that the pipe welders were unimportant to 

its business, Petroplex points to Bridges’ testimony that Petroplex is an oilfield 

services company that only began providing pipe welding services in 2014 at 

the behest of its client Pioneer. But, as the pipe welders note, Bridges also 

testified that approximately forty percent of its construction projects require 

welding and that Pioneer insisted Petroplex begin providing pipe welding and 

fabrication services for it. Thus, the record demonstrates that, although pipe 

welding is not the main focus of Petroplex’s business, it is integral to 

Petroplex’s relationship with its major client Pioneer. We therefore consider 

this factor neutral in our overall assessment under the economic realities test.

IV.

We conclude by noting that this case is not the first occasion we have had 

to consider whether welders or workers in the oil and gas industry were 

employees under the FLSA. And several facts present here do bear some 

resemblance to the facts in Carrell, Thibault, and Parrish, in which we have

held that the putative employees were in fact independent contractors; namely,

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that the pipe welders invested a relatively significant sum in their welding 

equipment, were highly skilled workers, and took several thousands of dollars 

in business deductions on their taxes. Evidence that Feeney worked for other 

pipe welding companies during his fourteen-month absence from Petroplex 

provides additional support for a finding of independent contractor status. But 

Brock makes clear that our role on appeal after a bench trial is limited. To the 

extent the evidence was to be weighed, it was within the judgment of the 

district court to do so. Here, the district court found that the control, 

investment, opportunity for profit and loss, and permanency Silk factors all 

weighed in favor of employee status. And it found the skill and initiative factor 

to be neutral. Because we can discern no clear error in those findings, we 

conclude that, as a matter of economic reality, Hobbs and Feeney were 

Petroplex employees. Accordingly, the judgment of the district court is, in all 

respects,

AFFIRMED. 

 Case: 19-50350 Document: 00515267211 Page: 18 Date Filed: 01/10/2020