United States Court of Appeals

for the Fifth Circuit

No. 22-20095

Jose Flores; Jean Romero-Rodriguez; Brandon 

Villarreal, 

Plaintiffs—Appellants,

versus

FS Blinds, L.L.C., 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-cv-4114

Before Wiener, Higginson, and Wilson, Circuit Judges.*

Cory T. Wilson, Circuit Judge:

This is an overtime case. Three installers of window blinds sued FS 

Blinds, L.L.C., the company for which they worked. The district court 

granted summary judgment to FS Blinds, determining that Plaintiffs had not 

met their prima facie burden to show they worked overtime. The court

dismissed the case, and Plaintiffs appealed.

* Judge Wiener concurs only in the judgment.

United States Court of Appeals

Fifth Circuit

FILED

July 12, 2023

Lyle W. Cayce

Clerk

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We reverse. Plaintiffs have met the lenient standard under Anderson 

v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88 (1946), and therefore 

survive summary judgment, at least as to whether, if employees, Plaintiffs 

worked overtime. But we decline to reach whether Plaintiffs were employees 

or independent contractors and instead remand for the district court to 

consider that question anew in view of this opinion.

I.

FS Blinds, a seller and installer of window blinds in Texas, engaged 

Plaintiffs Jose Flores, Jean Romero-Rodriguez, and Brandon Villarreal to 

install blinds. Flores worked for FS Blinds from mid-April 2018 until early 

October 2019. Romero-Rodriguez did so from early March until late October 

2019, and Villareal worked from early August 2018 until early April 2020, 

though he performed no work for FS Blinds for several weeks during that 

period.

Plaintiffs measured windows for blinds, delivered and installed blinds, 

and repaired damaged blinds, mostly in newly constructed homes. While the 

company’s office and warehouse are in Pearland, Plaintiffs traveled to job 

sites across the greater Houston area. Because FS Blinds treated Plaintiffs as 

independent contractors, it did not maintain records of the hours Plaintiffs 

spent performing work for the company. Instead, Plaintiffs received flat fees 

for each window measurement, blinds installation, or blinds repair completed

without regard to how long the job took or the travel time from one job site

to the next. FS Blinds owned the warehouse and maintained the inventory 

of blinds, but Plaintiffs traveled to job sites in their own vehicles and used

their own tools to complete the jobs.

Plaintiffs did not have set work schedules. Instead, each afternoon, 

FS Blinds sent them lists of jobs for the next day. The next morning,

Plaintiffs picked up the day’s blinds from FS Blinds’s warehouse. Flores and 

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Romero-Rodriguez had early pickup times, arriving at the warehouse 

between 5:00 and 5:30 a.m. Villarreal had a later time, between 7:00 and 8:00 

a.m. After pickup, Plaintiffs left the warehouse and traveled to job sites to 

complete their assignments. Each Plaintiff was largely responsible for 

managing his own schedule throughout the day. So long as the day’s job list

did not specify otherwise, Plaintiffs could complete the jobs in any order they 

chose. And if they failed to complete all the jobs on the day’s list, they could 

roll jobs over to the next day.

Plaintiffs’ daily quitting times varied. Flores usually finished between 

8:30 and 10:00 p.m. but sometimes worked as late as midnight. RomeroRodriguez usually finished between 7:30 and 8:30 p.m. Villarreal, between 

7:00 and 10:00 p.m.

While their usual weekly work schedules were Monday through 

Friday, Plaintiffs sometimes worked Saturdays. Other times, they worked 

fewer than five full days, at times working as little as one day a week. And as 

noted above, Villareal did no work at all for FS Blinds during several weeks 

over the course of his year-and-a-half stint with the company. Despite the 

variations in their schedules, Plaintiffs assert they each worked an average of 

“around 70 hours per week.”

In October 2019, Plaintiffs sued FS Blinds for failing to pay overtime

compensation, as required under the Fair Labor Standards Act (FLSA). See 

29 U.S.C. § 207. FS Blinds countered that “Plaintiffs were classified as 

independent contractors” and therefore were ineligible for overtime 

compensation. See id.

After discovery, both sides moved for summary judgment. The 

district court denied Plaintiffs’ motions, but it granted summary judgment to 

FS Blinds. The court determined that Plaintiffs had failed to meet their 

prima facie burden to show they worked overtime. Based on that conclusion, 

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the court dismissed Plaintiffs’ claims. The court denied summary judgment 

as to whether Plaintiffs were independent contractors, stating only that “a 

genuine question of material fact exists regarding Plaintiffs’ employee 

status.” After the district court entered its final judgment, Plaintiffs timely 

appealed.

II.

We review a summary judgment de novo, applying the same legal 

standards as the district court. Certain Underwriters at Lloyd’s, London v. 

Axon Pressure Prods. Inc., 951 F.3d 248, 255 (5th Cir. 2020). “[O]n cross 

motions for summary judgment,” we “address[] each party’s motion 

independently, viewing the evidence and inferences in the light most 

favorable to the nonmoving party.” CANarchy Craft Brewery Collective, LLC 

v. Texas Alcoholic Beverage Comm’n, 37 F.4th 1069, 1074 (5th Cir. 2022) 

(quotation omitted). Summary judgment is appropriate when “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). 

III.

The FLSA requires that employers pay certain employees overtime 

compensation. 29 U.S.C. § 207. Employers who fail to pay the requisite 

compensation are liable to the affected employees for unpaid overtime. Id.

§ 216(b). But the statute’s overtime protections apply only to covered 

“employees,” not to independent contractors. Id. § 207. This case centers 

on these two questions: (A) whether Plaintiffs worked overtime for which 

they were not paid, and (B) whether they were employees of FS Blinds, or 

independent contractors. 

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A.

We begin with overtime. All parties agree that because FS Blinds did 

not keep records of Plaintiffs’ hours, the burden-shifting standard from Mt. 

Clemens, 328 U.S. at 686–88, applies. The district court determined that 

Plaintiffs had not met their prima facie burden under Mt. Clemens because 

they “fail[ed] to substantiate their overtime claims with any specific facts, 

relying on conclusory and speculative assertions.” But under our precedent, 

Mt. Clemens is a not a tall slope. Plaintiffs have summited it. 

1.

First, the Mt. Clemens standard. 

Usually, a plaintiff who brings a claim for unpaid overtime bears “the 

burden of proving that he performed work for which he was not properly 

compensated.” 328 U.S. at 687. This burden is “easily discharge[d]” where 

an employer keeps accurate records of an employee’s hours, as the FLSA 

requires. Id.; see also 29 U.S.C. § 211 (providing that employers must “make, 

keep, and preserve” records of employees’ hours). 

But Mt. Clemens recognized that the FLSA’s recordkeeping regime

may inadvertently incentivize employers to “fail[] to keep proper records” 

because those records may later aid a plaintiff in proving overtime liability. 

328 U.S. at 687. Such a perverse incentive would “penalize the employee by 

denying him any recovery on the ground that he is unable to prove the precise 

extent of uncompensated work,” thereby contravening “[t]he remedial 

nature of [the FLSA] and the great public policy which it embodies.” Id.

To alleviate this concern, the Supreme Court in Mt. Clemens created 

a burden-shifting rule that applies when an employer has failed to keep 

records, or where such records are “inaccurate or inadequate.” Id. In such 

cases, a plaintiff need only come forward with evidence that shows “that he 

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has in fact performed work for which he was improperly compensated” and 

further shows “the amount and extent” of unpaid overtime worked “as a 

matter of just and reasonable inference.” Id. Under this relaxed standard, a 

plaintiff need not prove “the precise extent of uncompensated work,” id.,

though he must present more than “unsubstantiated assertions,” Harvill v. 

Westward Commc’ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005). 

Once a plaintiff has made this prima facie showing, “[t]he burden then 

shifts to the employer to come forward with evidence” that rebuts the 

plaintiff’s claims. Mt. Clemens, 328 U.S. at 687. The employer can discharge 

this burden by presenting either “evidence of the precise amount of work 

performed or . . . evidence to negative the reasonableness of the inference to 

be drawn from the employee’s evidence.” Id. at 687–88. “If the employer 

fails to produce such evidence, the court may then award damages to the 

employee, even though the result be only approximate.” Id. at 688. 

While the Mt. Clemens framework might seem “lenient,” it is “rooted 

in the view that an employer [should not] benefit from its failure to keep 

required payroll records, thereby making the best evidence of damages 

unavailable.” U.S. Dep’t of Labor v. Five Star Automatic Fire Prot., L.L.C., 

987 F.3d 436, 440 (5th Cir. 2021). 

2.

Next, whether Plaintiffs have met their prima facie burden. 

Plaintiffs each estimate an average workweek of 70 hours.1

 To 

substantiate this estimate, each Plaintiff testified about his usual work 

1 The district court miscast Plaintiffs’ testimony to denote an “unwavering stance 

that they worked 70 hours per week even on weeks when doing so would be impossible.” 

To the contrary, Plaintiffs have consistently contended that they worked an average of 70

hours per week, not that they worked 70 hours every week.

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schedule, including his usual daily starting and quitting times. This 

testimony supported that Plaintiffs each averaged workdays between 11 and

17 hours. Some of this testimony was corroborated by testimony from FS 

Blinds.2 In addition, Plaintiffs also produced work orders documenting the 

jobs they completed during a sample week.3

Based on the record before us, Plaintiffs have presented enough to 

satisfy their “lenient” prima facie burden under Mt. Clemens. See Five Star, 

987 F.3d at 440. Their testimony alone would be sufficient. See Hobbs v. 

EVO, Inc., 7 F.4th 241, 257 (5th Cir. 2021) (“This leniency [under Mt. 

Clemens] has led us to accept estimates of weekly overtime hours derived 

from plaintiffs’ testimony as adequate evidence[.]”); see also Beliz v. W.H. 

McLeod & Sons Packing Co., 765 F.2d 1317, 1331 (5th Cir. 1985) (finding

plaintiffs’ testimony regarding “personal knowledge of the work 

performed . . . was sufficient to establish, by reasonable inference, the hours 

worked”); Hodgson v. Ricky Fashions, Inc., 434 F.2d 1261, 1264 (5th Cir. 1970) 

(same). This is so even though Plaintiffs’ testimony offers only an estimated 

average of hours worked. See Reeves v. Int’l Tel. and Tel. Corp., 616 F.2d 1342, 

1352 (5th Cir. 1980) (finding plaintiffs met their burden by offering “an 

estimated average workweek of approximately 75 hours”); see also Donovan 

v. Hamm’s Drive Inn, 661 F.2d 316, 318 (5th Cir. 1981) (“The court found, 

2 For example, an FS Blinds representative corroborated that installers began 

arriving at the warehouse each morning at 5:30 a.m.

3 Using these records, Plaintiffs estimated hours worked during that sample week

at well over 40 hours. Before the district court, Plaintiffs contended that these summary 

estimates were admissible under Rule 1006 of the Federal Rules of Evidence. But the 

district court neither mentioned the summaries in its order nor ruled on the summaries’ 

admissibility. FS Blinds now contends that these summaries are inadmissible, but the 

parties dispute whether FS Blinds properly preserved this issue by objecting in the district 

court. We need not decide the issue. Even without the summaries, Plaintiffs’ testimony 

and work orders are sufficient to establish the Mt. Clemens inference.

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based on the testimony of employees, that certain groups of employees 

averaged certain numbers of hours per week and awarded back pay based on 

those admittedly approximate calculations.”).

In addition to their testimony, though, Plaintiffs offered supporting

work orders and some corroborating testimony from FS Blinds. All told, this 

record evidence hurdles Plaintiffs’ Mt. Clemens burden. See Skipper v. 

Superior Dairies, Inc., 512 F.2d 409, 417, 419 (5th Cir. 1975) (holding plaintiff 

met his burden by offering his own testimony and “73 different delivery lists” 

showing jobs he completed); see also O’Meara-Sterling v. Mitchell, 299 F.2d 

401, 404 (5th Cir. 1962) (finding plaintiff’s testimony and the timecards of 

his successor “adequate” to meet his burden). 

The district court thus erred when it rejected Plaintiffs’ claims as no 

more than unsubstantiated assertions. It reached that conclusion relying on 

Kirk v. Invesco, Limited, 700 F. App’x 334, 336 (5th Cir. 2017), and Ihegword 

v. Harris County Hospital District, 929 F. Supp. 2d 635, 668 (S.D. Tex. 2013). 

Of course, neither Kirk nor Ihegword is binding.4 In any event, we do not find 

either case persuasive. 

This case’s contrast with Harvill shows why. In Harvill, we rejected 

the plaintiff’s Mt. Clemens claim as mere “unsubstantiated assertions” 

because she “offered no factual allegations at all to substantiate her claims,” 

including “no evidence of the amount or the extent of hours she worked 

without compensation” and “no evidence that [her employer] was aware she 

worked overtime hours without compensation.” 433 F.3d at 441 (emphases 

4 This court’s unpublished opinions “do not establish any binding law for the 

circuit[.]” Salazar v. Molina, 37 F.4th 278, 286 (5th Cir. 2022). Likewise, “[a] decision of 

a federal district court . . . is not binding precedent in either a different judicial district, the 

same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 

563 U.S. 692, 709 n.7 (2011).

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in original). Only on appeal did Harvill “add[] to her argument” an alleged 

number of unpaid overtime hours. Id. Unlike in Harvill, Plaintiffs here have 

sufficiently substantiated their claim, proffering not only an estimated

number of unpaid overtime hours worked but also specific testimony and 

records to support their estimates.5

The district court also conflated the lenient Mt. Clemensstandard with 

the more stringent standard that applies in other overtime cases. The district 

court relied on Garner v. Chevron Phillips Chemical Company, L.P., for the 

proposition that each Plaintiff must “prov[e], with definite and certain 

evidence, that he performed work for which he was not properly 

compensated.” Garner, 834 F. Supp. 2d 528, 545–46 (S.D. Tex. 2011). But 

as Garner itself makes clear, id. at 546, that standard applies in overtime cases 

where the employer has kept the required time records, not in Mt. Clemens

cases. Considering the record before us and under the proper standard, 

Plaintiffs have met their prima facie burden. 

3.

In response, FS Blinds must rebut Plaintiffs’ showing. Mt. Clemens, 

328 U.S. at 687. Because FS Blinds did not keep records of Plaintiffs’ time, 

it cannot produce “evidence of the precise amount of work [Plaintiffs] 

5 On appeal, FS Blinds points for support to Fairchild v. All American Check 

Cashing, Inc., 815 F.3d 959 (5th Cir. 2016), and Garcia v. U Pull It Auto & Truck Salvage, 

Inc., 657 F. App’x 293 (5th Cir. 2016). But both cases are inapposite. Fairchild does not 

involve the Mt. Clemens standard at all, as the employer there maintained timesheets. 815 

F.3d at 965. In Garcia, the plaintiff’s assertions were insufficiently specific not because 

they failed to show he worked overtime, but because they failed to show he worked 

overtime for which he was not paid. 657 F. App’x at 297–98. That is not disputed here. We 

also note that Garcia is unpublished and, therefore, not precedential. See Salazar, 37 F.4th 

at 286. 

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performed.” Id. But the company can “‘disprove’ the evidence adduced” 

by Plaintiffs. Skipper, 512 F.2d at 420. It fails to do so.

FS Blinds points to Plaintiffs’ deposition testimony and their varied

weekly compensation. To be sure, FS Blinds is correct that Plaintiffs’ 

schedules varied week-to-week. But Plaintiffs have never asserted that they 

worked 70 hours every week. Instead, they have consistently maintained that 

they worked an average of 70 hours per week. See supra n.1. Therefore, FS 

Blinds’s broad-brush contention that Plaintiffs could not possibly have

worked 70 hours every week does not in itself overcome Plaintiffs’ overtime

allegations. 

At most, FS Blinds has identified certain weeks when each Plaintiff 

worked fewer than 70 hours, or no overtime at all. But FS Blinds nowhere 

offers undisputed summary judgment evidence demonstrating that Plaintiffs

did not work any unpaid overtime. Nor does FS Blinds counter Plaintiffs’ 

testimony about their usual start and end times. Thus, while the company 

has offered evidence that may well bear on the amount of overtime Plaintiffs 

worked, i.e., the compensation they are owed, FS Blinds has failed to negate

Plaintiffs’ proof that they in fact worked overtime for which they were not 

compensated. 

B.

But there is a “but.” Though Plaintiffs have met their prima facie 

burden under Mt. Clemens to show that they worked unpaid overtime,

thereby defeating summary judgment on this issue, Plaintiffs may 

nonetheless not recover if they were independent contractors, rather than 

employees. See Hopkins v. Cornerstone Am., 545 F.3d 338, 342 (5th Cir. 2008) 

(“[T]he FLSA applies to employees but not to independent contractors[.]”). 

In their competing motions for summary judgment, Plaintiffs asserted 

that they were employees, while FS Blinds contended that Plaintiffs were 

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independent contractors. The district court denied summary judgment to 

either side on the issue. In a single sentence in its order disposing of the 

motions, the district court determined that “a genuine dispute of material 

fact exists regarding Plaintiffs’ employee status.” Given its overtime 

holding, the district court did not analyze the issue further. On appeal, both 

Plaintiffs and FS Blinds urge us to resolve the issue, though they urge us to 

reach opposite conclusions.

In determining whether workers are employees or independent 

contractors, “the pertinent question is whether the alleged employees, as a 

matter of economic reality, are economically dependent on the business to 

which they supply their labor and services,” or are “in business for 

[them]sel[ves].” Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 

379 (5th Cir. 2019) (quotations and citation omitted). To answer, courts

consider five factors:

(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. (quoting Hopkins, 545 F.3d at 343). While these factors are “nonexhaustive,” “[o]nly the economic realities are legally relevant.” Id. at 379–

80. So we do not consider labels attached to the relationship by the alleged 

employees or employer unless they “mirror economic reality.” Id. at 380 

(quotations omitted). The ultimate determination about whether a worker is 

an employee or independent contractor is a question of law. Id. at 377. But 

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the findings as to the five factors and the “historical findings of fact that 

underlie [those] finding[s]” are questions of fact. Id. at 378.

Though the district court denied summary judgment on this issue, we 

could choose to address the question here to the extent it provides an 

alternate ground for affirmance. See Doctor’s Hosp. of Jefferson, Inc. v. Se. 

Med. All., Inc., 123 F.3d 301, 307 (5th Cir. 1997) (“A district court’s grant of 

summary judgment may be affirmed on grounds supported by the record 

other than those relied on by the court.”). “But we have no obligation to do 

that.” George v. SI Group, Inc., 36 F.4th 611, 626 (5th Cir. 2022) (Oldham, 

J., concurring in part) (citing Sanders-Burns v. City of Plano, 594 F.3d 366, 383 

(5th Cir. 2010)).

Whether Plaintiffs are independent contractors or employees is “fact 

intensive.” Hathcock v. Acme Truck Lines, Inc., 262 F.3d 522, 527 (5th Cir. 

2001); cf. Parrish, 917 F.3d at 380 (“Like every FLSA action in a similar 

posture, the instant cross-motions for summary judgment are ‘very fact 

dependent.’” (citation omitted)). But the district court’s order did not 

grapple with the facts in this case, only determining without explanation that 

“a genuine question of material fact exist[ed.]” Nor did the district court 

decide whether to consider the additional factors proffered by the parties—

namely, whether Plaintiffs were integral to FS Blinds’s operation and 

whether Plaintiffs represented themselves as independent contractors. 

Of course, this approach was not unreasonable given the court’s 

conclusion that Plaintiffs failed to substantiate their prima facie case; that 

holding made it unnecessary to delve any deeper into Plaintiffs’ employment 

relationship with FS Blinds. With our reversal of that holding, however, this 

alternative ground for summary judgment is again salient. Mindful that we 

are a “court of review, not of first view,” Landry’s, Inc. v. Ins. Co. of the State 

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of Penn., 4 F.4th 366, 372 n.4 (5th Cir. 2021), we decline to reach the issue to 

allow the district court to consider it first.

6

IV.

Finally, a word on damages. Should the district court conclude that 

Plaintiffs are employees (instead of independent contractors) and otherwise 

entitled to recover unpaid overtime compensation, it should then proceed to

“do the best [it] can in assessing damages.” Mitchell v. Riley, 296 F.2d 614, 

616 (5th Cir. 1961). “We do not minimize [the district court’s] difficulties” 

in “translat[ing]” the facts of this case “into dollars” for damages. Mitchell

v. Mitchell Truck Line, Inc., 286 F.2d 721, 725 (5th Cir. 1961). But under Mt. 

Clemens, the “[d]ifficulty of ascertainment is no longer confused with right 

of recovery.” Id. (citation omitted). Though Plaintiffs’ estimates are likely 

not “perfectly accurate,” they can still “provide[] a sufficient basis” for an 

award of damages under Mt. Clemens. Marshall v. Mammas Fried Chicken, 

Inc., 590 F.2d 598, 599 (5th Cir. 1979).

In this process, FS Blinds has no right “to complain that the damages” 

determined by the district court inevitably will “lack the exactness and 

precision of measurement that would be possible had [it] kept records in 

accordance with the [FLSA’s] requirements.” Mt. Clemens, 328 U.S. at 688; 

see also Mitchell Truck Line, 286 F.2d at 725 (“The employer cannot really 

complain that matters are left in great uncertainty.”). Nevertheless, the 

district court may consider whether FS Blinds has identified errors in 

Plaintiffs’ calculations. “It may well be that in this process the [district 

6 We also note that this court applies a “presumption [that] weighs in favor of 

submission of [employee-status] inquiries to the jury.” Hathcock, 262 F.3d at 527. This 

can be overcome where the facts “permit[] only one reasonable conclusion.” Id. We leave 

it to the district court to determine in the first instance whether the facts here overcome 

that presumption for Plaintiffs or for FS Blinds.

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court] will feel that further evidence should be taken.” Mitchell Truck Line, 

286 at 726. And if the evidence adduced substantiates errors in Plaintiffs’ 

alleged overtime amounts, the district court should reduce damages awarded 

accordingly. See Hobbs, 7 F.4th at 258 (“We note that the district court 

reduced the number of hours claimed by each Plaintiff based on errors that 

[the Defendant] brought to its attention.”). 

V.

The district court erred in holding that Plaintiffs failed to meet their 

prima facie burden to substantiate overtime under Mt. Clemens. The court’s 

summary judgment in favor of FS Blinds based on this conclusion was 

therefore likewise in error. Accordingly, we reverse the district court’s grant 

of summary judgment on this issue and remand for further proceedings 

consistent with this opinion. We foreshadow no outcome as to the questions 

that remain for the district court to consider on remand—including whether 

Plaintiffs were employees of FS Blinds or independent contractors, and, if 

they were employees, the appropriate overtime compensation to be awarded 

as damages in this action. We hold only that Plaintiffs have met their prima 

facie burden under Mt. Clemens to show they worked overtime.

REVERSED and REMANDED.

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