IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40824

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”),

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2014

Lyle W. Cayce

Clerk

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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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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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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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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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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 twelvehour 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 eightyfour 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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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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