FLSA Salary-Basis Rule: Comp-Time and Hypothetical Docking Do Not Defeat Exempt Status Absent an Actual Pay-Reduction Practice

1. Introduction

Moreau v. Harris County is a Fair Labor Standards Act (“FLSA”) overtime dispute brought by lieutenants and captains in the Harris County Sheriff’s Office (“HCSO”) against Harris County, Texas. Plaintiffs alleged they were denied overtime in violation of the FLSA. Harris County responded with affirmative defenses that the plaintiffs were exempt “administrative” and/or “executive” employees under 29 U.S.C. § 213(a)(1) and accompanying Department of Labor regulations.

The case consolidated multiple actions, proceeded before a magistrate judge by consent, resulted in partial summary judgment for the County (captains and certain jail-operating lieutenants deemed administratively exempt), and then went to a jury trial for remaining law-enforcement lieutenants. The jury found those plaintiffs exempt under both the administrative and executive exemptions. Plaintiffs challenged (i) salary-basis status, (ii) summary judgment on the “criminal justice” (jail) lieutenants, (iii) the jury charge and verdict form, and (iv) denial of post-verdict relief under Rules 50 and 59.

The Fifth Circuit affirmed across the board. The most practically significant clarification is the court’s application of Escribano v. Travis Cnty. to hold that a public employer’s comp-time policy and a theoretical ability to dock pay do not defeat the “salary basis” requirement without evidence of an actual impermissible practice of pay deductions.

2. Summary of the Opinion

The Fifth Circuit (Higginson, J.) affirmed:

• Salary basis: Plaintiffs were paid on a salary basis; a policy that could allow docking does not fail the salary-basis test absent evidence of actual improper deductions, following Escribano v. Travis Cnty.
• Criminal justice (jail) lieutenants: Summary judgment was proper because their primary duty was the administration of HCSO’s jails, qualifying for the administrative exemption.
• Jury charge: The court approved the pattern-like instructions and rejected claims that legal issues were improperly submitted to the jury. It found no reversible error in denying plaintiffs’ request for more granular Rule 49 special interrogatories.
• Dual exemptions verdict: While acknowledging complexity in whether both exemptions can apply given “primary duty” language, the court held it was not plain error to allow the jury to answer “yes” to both.
• Post-verdict motions: Evidence supported the verdict on executive and administrative exemption elements; no abuse of discretion in denying a new trial for alleged inconsistency.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

A. The FLSA framework and “fair reading” of exemptions

• Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39 (2023) and Hewitt v. Helix Energy Sols. Grp., Inc., 15 F.4th 289 (5th Cir. 2021), aff’d, 598 U.S. 39 (2023):
  Used to restate the three-part architecture of the white-collar exemptions (duties test, salary level, salary basis) and to emphasize that the “unit of time used to calculate pay” determines which salary test applies.
• Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981):
  Cited via Helix for the FLSA’s purpose of combating “substandard wages” and “oppressive working hours,” framing overtime as the statute’s central protection.
• Gilchrist v. Schlumberger Tech. Corp., 143 F.4th 620 (5th Cir. 2025) (per curiam):
  Provided the governing interpretive lens: exemptions receive a “fair reading,” reflecting the Supreme Court’s instruction post-Encino Motorcars, L.L.C. v. Navarro, 584 U.S. 79 (2018).
• Dewan v. M-I, L.L.C., 858 F.3d 331 (5th Cir. 2017), abrogated on other grounds by Encino Motorcars, L.L.C. v. Navarro, 584 U.S. 79 (2018):
  Cited for summary judgment burden-shifting on affirmative defenses (“beyond peradventure”), but cabined by the court’s note—echoing Gilchrist—that parts of Dewan are no longer good law after Encino.
• Faludi v. U.S. Shale Sols., L.L.C., 950 F.3d 269 (5th Cir. 2020):
  Reinforced that the employer bears the burden to prove an exemption and that courts apply the exemption regulations in effect during the relevant employment period.

B. Salary basis: “subject to reduction” requires an actual deduction practice

• Escribano v. Travis Cnty., 947 F.3d 265 (5th Cir. 2020):
  This was the decision’s linchpin for the salary-basis issue. The Fifth Circuit reaffirmed Escribano’s reading of 29 C.F.R. §§ 541.602(a) and 541.603(a): “subject to reduction” is evaluated through the regulation governing the “effect of improper deductions,” which centers on whether there is evidence of an impermissible reduction practice. A mere policy that could allow reductions is only partial evidence and, without more, does not destroy salaried status.
• Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,181 (2004):
  Used (as in Escribano) to show the Department of Labor’s intent that § 541.603 demands a case-by-case inquiry and that a policy alone is typically insufficient.
• Sister-circuit authorities approving the “actual practice” approach: Litz v. Saint Consulting Grp., Inc., 772 F.3d 1 (1st Cir. 2014); Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184 (10th Cir. 2015); Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618 (6th Cir. 2009).
  These cases were cited to confirm that the Fifth Circuit’s approach aligns with other circuits requiring evidence of actual salary docking.
• Hughes v. Gulf Interstate Field Servs., Inc., 878 F.3d 183 (6th Cir. 2017):
  Plaintiffs invoked Hughes, but the panel distinguished it because Hughes dealt with shift-based compensation (implicating a different regulation, 29 C.F.R. § 541.604), whereas HCSO paid a fixed amount each pay period.
• Kelly v. City of Alexandria, 163 F.4th 95 (4th Cir. 2025):
  Used to show how hourly accounting and leave banks can coexist with salary-basis status. The key question is the role the hourly measure plays in determining pay—if pay does not fluctuate with hours worked, the employee looks salaried even if leave is used to “make up the difference.”

C. Administrative exemption for jail-operating lieutenants: “running the business” vs. frontline work

• Jones v. New Orleans Regional Physician Hospital Organization, Inc., 981 F.3d 428 (5th Cir. 2020):
  Instructive on prong two of the administrative exemption (“directly related to management or general business operations”). The court leveraged Jones to stress that 29 C.F.R. § 541.201(b)’s list of examples is not exhaustive and supports analogical reasoning. Jail administration was treated as akin to personnel management/quality control and operational servicing.
• Maestas v. Day & Zimmerman, LLC, 664 F.3d 822 (10th Cir. 2012):
  Helped address the first-responder carve-out (29 C.F.R. § 541.3(b)). The point: higher-level law enforcement employees can still be exempt if their primary duty is managerial/administrative despite occasionally performing first-responder tasks.

D. Jury instruction, “law vs. fact,” and standards of review

• United States v. Greenlaw, 84 F.4th 325 (5th Cir. 2023); Jimenez v. Wood Cnty., 660 F.3d 841 (5th Cir. 2011); Fiber Sys. Int'l, Inc. v. Roehrs, 470 F.3d 1150 (5th Cir. 2006); Russell v. Plano Bank & Tr., 130 F.3d 715 (5th Cir. 1997); United States v. Avants, 367 F.3d 433 (5th Cir. 2004):
  These cases supplied the preservation rules and the abuse-of-discretion vs. plain-error framework. The panel assumed (without deciding) preservation on certain charge issues.
• United States v. Ryan, 156 F.4th 583 (5th Cir. 2025) (quoting United States v. Uhlenbrock, 125 F.4th 217 (5th Cir. 2024)):
  Supported the proposition that tracking Fifth Circuit Pattern Jury Instructions generally defeats a claim of instructional error where the law is correctly stated.
• Smith v. City of Jackson, 954 F.2d 296 (5th Cir. 1992) (quoting Blackmon v. Brookshire Grocery Co., 835 F.2d 1135 (5th Cir. 1988)); Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d 326 (5th Cir. 2000):
  These cases framed the recurring FLSA “mixed question” point: exemption status is “primarily a question of fact,” though the ultimate exemption determination is a question of law—supporting the propriety of sending fact-intensive exemption elements to the jury.
• Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); IntraComm, Inc. v. Bajaj, 492 F.3d 285 (4th Cir. 2007):
  Cited in the court’s discussion of whether a jury may find both administrative and executive exemptions despite each requiring a “primary duty.” These Fourth Circuit cases suggested the “combination exemption” (29 C.F.R. § 541.708) can address circumstances where no single exemption’s primary-duty requirement is satisfied—highlighting that the doctrinal question is unsettled.
• Tex. Foods Indus. Ass'n. v. U.S. Dept. of Agric., 81 F.3d 578 (5th Cir. 1996):
  Invoked by plaintiffs for plain-meaning interpretive principles in arguing “primary duty” can only be singular.

E. Sufficiency of evidence and executive/administrative exemption elements

• Rule 50 standards: Nobach v. Woodland Vill. Nursing Ctr., Inc., 799 F.3d 374 (5th Cir. 2015); E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013); Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422 (5th Cir. 2022).
  These controlled the deference owed to the verdict and the “legally sufficient evidentiary basis” inquiry.
• Executive exemption “customarily recognized department/subdivision” and contextual analysis: Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554 (2d Cir. 2012); West v. Anne Arundel Cnty., 137 F.3d 752 (4th Cir. 1998), abrogated on other grounds by Morrison v. Cnty. of Fairfax, 826 F.3d 758 (4th Cir. 2016).
  The court used these to reinforce that “shift,” “station,” or “team” structures can qualify as recognized subdivisions under 29 C.F.R. § 541.103(a), depending on permanence and function.
• Executive exemption “particular weight” on hiring/firing recommendations: Miller v. Travis County, 953 F.3d 817 (5th Cir. 2020).
  The panel relied on Miller to emphasize that when evidence cuts both ways on “particular weight,” appellate review does not reweigh credibility; a jury may reasonably find for either side.
• Administrative exemption in municipal context: Smith v. City of Jackson, 954 F.2d 296 (5th Cir. 1992); Emmons v. City of Chesapeake, 982 F.3d 245 (4th Cir. 2020).
  These supported characterizing certain supervisory/logistical roles in public safety as “non-manual” and administrative in nature, not frontline production work.
• Rule 59 and waiver: Carr v. Wal-Mart Stores, Inc., 312 F.3d 667 (5th Cir. 2002); Morante v. American General Financial Center, 157 F.3d 1006 (5th Cir. 1998).
  Carr supplied the abuse-of-discretion standard for new trials. Morante supported the holding that plaintiffs waived an “independent judgment” sufficiency argument by not raising it at the close of evidence.

3.2. Legal Reasoning

A. Salary basis: the opinion’s operational rule

The court treated the salary-basis issue as controlled by the interplay between: 29 C.F.R. § 541.602(a) (salary basis: predetermined amount not subject to reduction for quantity/quality of work), and 29 C.F.R. § 541.603(a) (improper deductions: exemption lost only if facts show employer did not intend to pay on a salary basis).

Applying Escribano v. Travis Cnty., the Fifth Circuit reiterated a pragmatic evidentiary requirement: a plaintiff challenging salary basis must point to evidence of an actual practice of impermissible reductions (or comparable proof of an intent not to pay on a salary basis), not merely a written policy that might permit docking.

On the record, Harris County showed plaintiffs received a standard guaranteed salary, on a regular biweekly pay period. Plaintiffs conceded the policy could allow pay docking once comp time was exhausted, but they produced no evidence that pay was actually docked. Under Escribano, that absence was dispositive.

Notably, the panel declined to reach plaintiffs’ “public-employer safe-harbor rule” arguments, finding them unnecessary given the “no actual practice” conclusion.

B. Administrative exemption: jail administration as “running the operation”

For criminal justice lieutenants, the panel emphasized “primary duty” under 29 C.F.R. § 541.700(a) and “directly related to management or general business operations” under 29 C.F.R. § 541.201(a)-(b).

The reasoning: administering county jails—ensuring day-to-day functioning, supervising and correcting subordinate performance, and focusing on operational tasks—fits the regulatory notion of servicing/running the employer, akin to personnel management and quality control. Plaintiffs’ limited evidence that they sometimes performed floor tasks did not create a genuine dispute that such tasks were their primary duty.

The first-responder limitation in 29 C.F.R. § 541.3(b) did not control because it applies where primary duties are frontline law-enforcement activities. The court accepted that high-level officers can remain exempt even if they periodically do first-responder work, consistent with Maestas v. Day & Zimmerman, LLC.

C. Jury charge: pattern instructions, and “law vs. fact” in FLSA exemptions

The panel approved the charge because it mirrored the Fifth Circuit Pattern Jury Instruction (Civil Cases) § 11.24, properly placed the burden on Harris County, and tracked the regulatory elements for both exemptions.

On the plaintiffs’ claim that the jury was asked to decide legal questions, the court relied on Smith v. City of Jackson and Lott v. Howard Wilson Chrysler-Plymouth, Inc.: exemption determinations are fact-intensive, and juries may decide the predicate factual questions (what the employee’s duties were, whether they were primary, etc.), even though the ultimate “exempt or not” label is a legal conclusion.

D. Dual exemptions and “primary duty”: unresolved, but not plain error

Plaintiffs argued the administrative and executive exemptions are mutually exclusive because each requires that exempt work be the employee’s “primary duty.” The panel acknowledged the textual force of that argument and the intuitive difficulty of having “two” primary duties.

But the court emphasized two sources of uncertainty that defeated plain-error relief:

• Overlap in functions: Harris County argued (and the magistrate judge accepted) that executive and administrative functions can overlap in a supervisory public-safety role.
• The “combination exemption” regulation: 29 C.F.R. § 541.708 states that an employee whose primary duty involves a combination of exempt executive and administrative work may qualify, and that exempt work under one section “will not defeat” exemption under another.

Because this doctrinal area is “subject to reasonable debate,” the panel held it was not “clear or obvious” error to permit a verdict finding both exemptions.

E. Post-verdict sufficiency: deference to the jury on close exemption calls

Applying Rule 50 standards, the court held the verdict had a sufficient evidentiary basis:

• Executive exemption—recognized subdivision: Evidence showed HCSO’s bureaus/divisions/sections/shifts were permanent and continuing, and lieutenants supervised shifts or defined units (homicide, child abuse, SWAT, night shift). Under 29 C.F.R. § 541.103(a) and persuasive authority like Ramos v. Baldor Specialty Foods, Inc., a “shift” can qualify as a recognized subdivision.
• Executive exemption—hiring/firing influence: Evidence that lieutenants sat on interview boards and made recommendations sometimes followed was enough under 29 C.F.R. §§ 541.100 and 541.105. Miller v. Travis County reinforced that the jury is entitled to choose between competing inferences about “particular weight.”
• Administrative exemption—nature of work: Evidence of staffing management, report review, equipment allocation, training, review of pursuits/use-of-force, field management, and logistics could reasonably be viewed as servicing/running operations rather than frontline “production” work, consistent with Smith v. City of Jackson and the regulatory examples.

The Rule 59 inconsistent-verdict argument failed for largely the same reason as the jury-charge challenge: even if the “two primary duties” problem is conceptually difficult, the overlap and § 541.708 make the issue insufficiently settled to deem the verdict legally inconsistent as a matter warranting a new trial.

3.3. Impact

A. Salary-basis litigation: policy vs. practice

The decision strengthens (and updates through Helix and Kelly) a practical defense-friendly principle within the Fifth Circuit: in salary-basis disputes, plaintiffs should expect to need evidence of actual pay docking (or similarly concrete proof of intent not to pay on a salary basis), not merely a written policy that could allow deductions once leave/comp time is exhausted.

B. Public-safety supervisors: exemption viability despite frontline overlap

By affirming exemptions for both jail-operating lieutenants (as a matter of law on summary judgment) and patrol/investigations lieutenants (as a matter of fact via jury verdict), the opinion underscores that supervisory law-enforcement ranks are not automatically treated as nonexempt first responders under 29 C.F.R. § 541.3(b). The determinative question remains “primary duty.”

C. “Dual exemptions” remains an open doctrinal question

The court did not definitively hold that an employee may simultaneously satisfy both the administrative and executive exemptions; rather, it held only that allowing the jury to find both was not plain error and not an abuse of discretion on the new-trial record. Still, by foregrounding § 541.708, the decision will likely shape future briefing: employers may frame many supervisory roles as involving a “combination” of exempt executive and administrative work, while employees will push for a tighter “one primary duty” constraint.

4. Complex Concepts Simplified

• Salary basis (29 C.F.R. § 541.602): You are salaried if you receive a predetermined amount each pay period that generally does not go down just because you worked fewer hours or did less work that week.
• Improper deductions and “actual practice” (29 C.F.R. § 541.603): Even if an employer has a policy that could allow pay docking, the exemption usually is not lost unless the employer actually docks pay (or otherwise shows it did not intend to pay a salary).
• Administrative exemption (29 C.F.R. § 541.200): Protects certain non-manual roles that help run the organization (operations, staffing, compliance, quality control) and that involve discretion on important matters.
• Executive exemption (29 C.F.R. § 541.100): Protects true managers—those whose main job is managing a department/subdivision, supervising others, and having meaningful influence over hiring/firing or similar status changes.
• First responder regulation (29 C.F.R. § 541.3(b)): Prevents employers from calling frontline police/corrections work “executive/administrative” just because the employee has a rank; the key is whether the primary duty is frontline response versus management/administration.
• Rule 50 vs. Rule 59: Rule 50 asks whether evidence was so one-sided that no reasonable jury could decide the way it did. Rule 59 asks whether a new trial is needed because the verdict is against the great weight of the evidence or the proceedings were unfair.
• Plain error: A high bar on appeal when an issue was not clearly preserved—error must be obvious and affect fairness/outcome.

5. Conclusion

Moreau v. Harris County is an important Fifth Circuit consolidation of modern FLSA exemption principles in the public-safety context. Its central doctrinal takeaway is the reaffirmation—through Escribano v. Travis Cnty.—that salary-basis challenges generally require evidence of an actual impermissible deduction practice, not merely a policy that might allow docking after comp time is exhausted. The court also reinforces a fact-intensive approach to exemption determinations for supervisory law-enforcement personnel and signals that the “dual exemptions”/“primary duty” tension—implicated by the combination exemption in 29 C.F.R. § 541.708—remains unsettled, though not reversible under the standards presented.