United States Court of Appeals

for the Fifth Circuit

No. 21-40496

Marcus Hargrave, 

Plaintiff—Appellant,

versus

AIM Directional Services, L.L.C., 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:18-CV-449

Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.

Per Curiam:*

Marcus Hargrave alleges that AIM Directional Services, Inc. violated 

the Fair Labor Standards Act by failing to pay him overtime. The district 

court granted AIM summary judgment, concluding that Hargrave was an 

independent contractor rather than an employee covered by the FLSA. We 

agree with that conclusion, for largely the same reasons that we reached that 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 11, 2022

Lyle W. Cayce

Clerk

Case: 21-40496 Document: 00516315278 Page: 1 Date Filed: 05/11/2022
No. 21-40496

2

result in Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369 (5th Cir. 

2019). Accordingly, we affirm.

I.

AIM “provides oil and gas directional drilling, horizontal drilling, 

mud-motor drilling, and measurement while drilling services and tools to 

various clients.” To conduct its drilling operations, AIM employs 

directional drillers. Directional drillers “guide the path of drilling” and 

provide advice on how to most effectively implement the well plan provided 

by AIM’s clients, which functions as the general guideline for drilling

operations. Directional drillers’ work is complicated, sensitive, and crucial 

to AIM’s business. 

AIM hires some directional drillers as employees. But it also brings 

on independent contractors “as needed to meet the demands of fluctuating 

rig counts,” either directly or through third-party staffing companies. All 

directional drillers have essentially the same duties and responsibilities while 

on the job, irrespective of how they are classified. But unlike AIM’s 

employees, directional drillers brought on as independent contractors are 

free to accept or reject jobs as they please and are not required to sign noncompete or non-disclosure agreements. And while AIM’s employees are 

salaried, independent contractors are paid on a day-rate basis. Independent 

contractors also receive none of the benefits and allowances provided to AIM

employees, aside from a mileage reimbursement. 

Marcus Hargrave has been a directional driller since 2006. From 

2008 to 2018, he contracted with various oilfield services companies through 

his directional drilling consulting firm, Hargrave Oil Field Consulting, LLC. 

In 2018, Hargrave interviewed with AIM. In the interview, AIM

informed Hargrave that he would need to work with RigUp, a third-party 

staffing company, if he was interested in providing directional drilling 

Case: 21-40496 Document: 00516315278 Page: 2 Date Filed: 05/11/2022
No. 21-40496

3

services to AIM as an independent contractor. Shortly thereafter, Hargrave 

began working on directional drilling projects for AIM through RigUp. 

While on the job, Hargrave would submit timesheets to RigUp. RigUp would 

then pay Hargrave and bill AIM for Hargrave’s services. Hargrave preceded 

to work on various projects for AIM from April to November of 2018, 

although there were points within that time period “where AIM did not have 

work for him” and encouraged him to “look around” for other opportunities.

Hargrave eventually filed this action, alleging that AIM violated the 

FLSA and the New Mexico Minimum Wage Act by improperly classifying 

him as an independent contractor and failing to pay him overtime. The 

district court granted summary judgment to AIM after concluding that 

Hargrave was an independent contractor rather than an employee, and 

Hargrave timely appealed.1

II.

We review a district court’s grant of summary judgment de novo, 

applying the same standard as the district court. Nola Spice Designs, L.L.C. 

v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015). See also Hopkins v. 

Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008) (“We review de novo a 

district court’s legal conclusion as to employment status in a grant of 

summary judgment.”). Summary judgment is appropriate “if the movant 

shows 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). 

1 On appeal, Hargrave does not challenge the district court’s grant of summary 

judgment as to his claim under the New Mexico Minimum Wage Act. He has therefore 

abandoned that claim. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). 

Case: 21-40496 Document: 00516315278 Page: 3 Date Filed: 05/11/2022
No. 21-40496

4

III.

The FLSA “establishes a standard 40-hour workweek by requiring 

employers to pay ‘time and a half’ for any additional time worked.” Hewitt 

v. Helix Energy Sols. Grp., Inc., 15 F.4th 289, 290 (5th Cir. 2021) (en banc) 

(citing 29 U.S.C. § 207(a)). But “[i]ndependent contractors are exempt 

from [this] requirement.” Hobbs v. Petroplex Pipe & Constr., Inc., 946 F.3d 

824, 829 (5th Cir. 2020).

To determine whether a given worker is an employee or an 

independent contractor, we must focus on “[e]conomic reality rather than 

technical concepts.” Goldberg v. Whitaker House Co-op., 366 U.S. 28, 33 

(1961) (quotations omitted). In making this assessment, our court generally 

uses “five non-exhaustive factors,” known as the Silk factors, to “guide” the 

analysis: “(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.” Parrish, 917 

F.3d at 379 (quotations omitted). These “factors should not be applied 

mechanically” and “no single factor is determinative.” Id. at 380 (quotations 

omitted). See also Carrell v. Sunland Const., Inc., 998 F.2d 330, 334 (5th Cir. 

1993) (observing that “most employee-status cases” will have “facts 

pointing in both directions”). 

A.

We start by assessing the degree of control AIM exercised over 

Hargrave. See Parrish, 917 F.3d at 381. “Control is only significant when it 

shows an individual exerts such control over a meaningful part of the business 

that the individual stands as a separate economic entity.” Hobbs, 946 F.3d at

830 (cleaned up). Thus, the question is “whether the worker has a viable 

Case: 21-40496 Document: 00516315278 Page: 4 Date Filed: 05/11/2022
No. 21-40496

5

economic status that can be traded to other companies.” Id. (quotations 

omitted).

When on a job for AIM, the company “did not dictate” how 

Hargrave “completed [his] directional-drilling calculations.” Parrish, 917 

F.3d at 381. And while at each job he was “provided an already-designed 

well-plan,” it was Hargrave that “made that plan work.” Id. at 381–82. As 

in Parrish, these facts indicate that “the control factor leans in favor of 

[independent contractor] status.” Id. at 381.

Hargrave argues that AIM controlled his compensation because it set 

both the “method and rate of [his] pay.” But that alone is unpersuasive given 

that Hargrave was “free to accept or reject jobs from AIM” as he pleased. 

Hargrave also contends that AIM exercised control over his “schedule and 

job assignments” because AIM told him “where to go and when” once he 

accepted a job. But again, Hargrave was free to pick and choose which job

assignments to accept. And while AIM did assign Hargrave certain shifts 

while on the job, we have previously recognized that this sort of control does 

not militate in favor of employee status in this context, as firms like AIM

“need to know” which directional drillers are “working at any given time.” 

See id. at 382 (stressing that directional drillers must “work in concert with 

the rest of the drilling operation”).

Next, Hargrave stresses that AIM required him “to work the entire 

duration of the job assignment himself and precluded him from 

subcontracting his work out.” But while “[p]reventing subcontracting is an 

exercise of control,” it “is not dispositive here.” Id. at 385. That’s because 

it is reasonable “for a company to want to hire a specific person,” particularly 

for roles that require “advanced skill and specialized expertise.” Id.

Finally, Hargrave places great emphasis on the fact that AIM forced 

him to “comply with . . . safety protocols and procedures,” and “strongly 

Case: 21-40496 Document: 00516315278 Page: 5 Date Filed: 05/11/2022
No. 21-40496

6

encouraged” him to wear “personal protective equipment with the AIM

logo on it” while on the job. But as the district court observed, encouraging 

workers “to wear a hard-hat with an AIM logo” and mandating compliance 

with “safety policies and procedures that are generally required for safe 

operations on an oil-drilling site [is] not the type of control that counsels in 

favor of employee status.” See id. at 382. 

B.

We now turn to the relative investments of AIM and Hargrave. See 

Hobbs, 946 F.3d at 831. This factor “compares the amount the alleged 

employer and employee each contribute to the specific job the employee 

undertakes.” Thibault v. Bellsouth Telecomms., Inc., 612 F.3d 843, 847 (5th 

Cir. 2010).

AIM observes that Hargrave provided his own laptop, office supplies, 

safety equipment, and transportation for his work with AIM. However, for 

each project Hargrave worked on, AIM provided him with living quarters 

and the requisite drilling equipment and computer software. We therefore 

agree with the district court that “AIM clearly invested more money in the 

directional drilling projects Hargrave worked on.”

But while this factor favors employee status here, we accord it “little 

weight, in the light of the nature of the industry and the work involved.” 

Parrish, 917 F.3d at 383 (noting that directional drilling firm’s “significant” 

investment “at a drill site” was necessary for directional drillers to be “able 

to complete the job”).

C.

“The third determination is the degree to which the worker’s 

opportunity for profit or loss is determined by the alleged employer.” Id. at 

384 (quotations omitted).

Case: 21-40496 Document: 00516315278 Page: 6 Date Filed: 05/11/2022
No. 21-40496

7

“In evaluating this factor, it is important to determine how the 

workers’ profits depend on their ability to control their own costs.” Hobbs, 

946 F.3d at 832 (quotations omitted). While AIM had a set day rate for the 

directional drillers it contracted with, Hargrave still “made decisions 

affecting [his] expenses.” Parrish, 917 F.3d at 384. Indeed, Hargrave admits 

that he paid “for some of the vehicles, tools, equipment, and consumables” 

necessary to perform his work for AIM. See Carrell, 998 F.2d at 332 

(welders’ profits hinged on their ability “to minimize welding costs” given 

that they were responsible for “all costs associated with . . . their welding 

equipment”). Hargrave was then able to deduct these expenses from his 

taxes.2 See Parrish, 917 F.3d at 384–85 (deducting business expenses is 

indicative of independent contractor status). Moreover, unlike AIM’s 

employees, Hargrave did “not receive any pay from” AIM when he was not 

“working on one of its projects.” Id. at 384. This all militates in favor of 

finding that Hargrave had sufficient control over his profits and losses for this 

factor to support independent contractor status. See id.

Also relevant is “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.” Hobbs, 946 

F.3d at 832. Hargrave asserts that “the demands of AIM’s schedule 

effectively prevented [him] from finding other [directional drilling] work due 

to the number of hours he worked and the ‘on call’ nature of the job 

assignments.” But the record does not support that conclusion. Hargrave

was not required to sign a non-disclosure or non-compete agreement, and 

2 We acknowledge that there is at least some ambiguity in the record as to whether 

Hargrave filed taxes in 2018, the year he worked for AIM, because Hargrave provided 

inconsistent answers on that issue in his deposition testimony. However, we would still 

conclude that this Silk factor weighs in favor of independent contractor status even if 

Hargrave did not, in fact, deduct any business expenses that year.

Case: 21-40496 Document: 00516315278 Page: 7 Date Filed: 05/11/2022
No. 21-40496

8

was “free to find additional . . . work.” Indeed, AIM encouraged him to do 

just that at times. Hargrave chose instead to use the “gap periods where 

AIM did not have work for him” to fish and “enjoy life.” That is a far cry 

from cases where “as a practical matter the work schedule . . . precluded 

significant extra work.” Cromwell v. Driftwood Elec. Contractors, Inc., 348 F. 

App’x 57, 61 (5th Cir. 2009) (per curiam).

D.

We also consider “the skill and initiative required in performing the 

job.” Hobbs, 946 F.3d at 829. “As a part of this inquiry, whether plaintiffs 

have some unique skill set, or some ability to exercise significant initiative 

within the business is, for obvious reasons, evaluated.” Parrish, 917 F.3d at 

385 (cleaned up). “Greater skill and more demonstrated initiative counsel in 

favor of independent contractor status.” Hobbs, 946 F.3d at 834 (cleaned 

up).

Hargrave argues he is not “highly skilled” for our purposes because 

AIM failed to establish that he was more skilled than AIM’s directional 

driller employees. But our court has “decline[d] to require [that] plaintiffs, 

as putative ICs, be more skilled than their employee counterparts.” Parrish, 

917 F.3d at 386 (“[A] company with a highly-skilled general counsel can still 

hire an outside lawyer as an IC, even if the general counsel is a more skilled 

lawyer.”) (cleaned up).

After reviewing the record, we agree with the district court that 

Hargrave is “highly skilled.” By the time Hargrave began his work with 

AIM, he had more than a decade of experience carrying out the 

“complicated work” of a directional driller. Id. And by Hargrave’s own 

admission, that experience enabled him to develop an “expertise,” which he 

used to provide advice on the best way to implement a well plan, and to 

propose solutions to problems as they arose. Hargrave’s “high-skill level, 

Case: 21-40496 Document: 00516315278 Page: 8 Date Filed: 05/11/2022
No. 21-40496

9

understood in the light of [his] complicated work, weighs heavily in favor of” 

finding he was an independent contractor. Id. See Carrell, 998 F.2d at 333 

(5th Cir. 1993) (concluding pipe welders’ “specialized skills” supported 

independent contractor status).

That still leaves the matter of whether Hargrave had the “ability to 

exercise significant initiative within the business.” Parrish, 917 F.3d at 385

(cleaned up). In making this assessment, we generally assess whether the 

“major components” of the business that are open to initiative are within the 

plaintiff’s control. See Hopkins, 545 F.3d at 345 (quotations omitted). See 

also Hickey v. Arkla Indus., Inc., 699 F.2d 748, 752 (5th Cir. 1983) (noting 

plaintiff-salesman controlled “major components” of the business, such as 

“the methods of marketing and sales” and “the choice of other products to 

sell”). AIM asserts that Hargrave “showed initiative in starting and

operating his own consulting firm [prior to working with AIM], investing in 

his equipment and tools, and managing his own finances.” But we are not 

convinced that the record “demonstrate[s] the sort of initiative compelling 

nonemployee status.” See Parrish, 917 F.3d at 386. If anything, it seems 

Hargrave’s “initiative was limited once on the job.” Hobbs, 946 F.3d at 834. 

That said, this factor “is viewed by the totality of the circumstances.” 

Parrish, 917 F.3d at 386. See Hopkins, 545 F.3d at 345 (“Generally, we look 

for some unique skill set orsome ability to exercise significant initiative within 

the business.”) (citations omitted and emphasis added). And ultimately, 

Hargrave’s “specialized skill . . . persuades us to hold this factor leans in 

favor of [independent contractor] status.” Parrish, 917 F.3d at 386.

E.

We now turn to the final Silk factor: the permanency of the 

relationship. See id. Relevant here is whether Hargrave “worked 

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

Case: 21-40496 Document: 00516315278 Page: 9 Date Filed: 05/11/2022
No. 21-40496

10

the work was on a project-by-project basis.” Hobbs, 946 F.3d at 834 

(quotations omitted). 

The district court found that Hargrave’s relationship with AIM was 

“non-exclusive because AIM did not require Hargrave to sign any noncompete or non-disclosure agreement.” But given that the analysis “is 

focused on economic reality” rather than “economic hypotheticals,” 

whether Hargrave “could have worked for other directional-drilling 

companies . . . is not a relevant concern.” Parrish, 917 F.3d at 387. And it is 

undisputed that Hargrave “generally did not contract with other directionaldrilling companies” while working with AIM. Id. 

We next consider the total length of the relationship. In our view, the 

district court was correct to conclude that “Hargrave’s working relationship 

with AIM” was “short-lived.” His work for AIM spanned a six-month 

period, notably shorter than the “substantial period[s] of time” that we have 

previously found indicative of a more permanent relationship. See, e.g.,

Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 666 (5th Cir. 1983) (“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 exclusive[ ].”). Moreover, as mentioned, there were multiple 

“gap periods” within that time where AIM “did not have work for” 

Hargrave.

Hargrave’s work was also on a “project-by-project basis,” Carrell, 

998 F.2d at 332, which “counsels heavily in favor of [independent 

contractor] status,” Parrish, 917 F.3d at 387. Hargrave contends otherwise 

because he worked on many AIM projects and did not have to formally reapply for each one. But “[t]he key question” is whether AIM hired 

Hargrave “for only specific projects” or whether it hired him “to complete 

all available [directional drilling] work.” Hobbs, 946 F.3d at 835. Before the 

Case: 21-40496 Document: 00516315278 Page: 10 Date Filed: 05/11/2022
No. 21-40496

11

district court, Hargrave acknowledged that AIM engaged him “to work a 

project . . . from the start of drilling until completion,” at which point AIM

would offer him a new project—through RigUp—if one was available. So

while AIM “made an effort to move [Hargrave] to subsequent projects,” 

Carrell, 998 F.2d at 332, there is no meaningful dispute that Hargrave’s 

“work was on a project-by-project basis,” Hobbs, 946 F.3d at 834 (quotations 

omitted). 

All things considered, we believe this factor also leans in favor of 

finding that Hargrave was an independent contractor.

* * *

For the foregoing reasons, we agree with the district court that 

Hargrave “was an independent contractor” and thus not subject to the 

FLSA’s requirements. Accordingly, we affirm.

Case: 21-40496 Document: 00516315278 Page: 11 Date Filed: 05/11/2022