Labor & Employment Law Daily Wrap Up, WAGE-HOUR—OVERTIME—5th Cir.: Sheriff’s office lieutenants, captains, fail to revive overtime claims, (Sep 8, 2026)

By Todd Harrison, J.D.

Although the county’s policy could allow for impermissible—and potentially violative—deductions in salary, there was no evidence it actually effectuated any deductions.

Affirming a magistrate judge’s grant of summary judgment against the FLSA overtime claims asserted by lieutenants and captains working in the Harris County Sheriff’s Office, the Fifth Circuit found that the judge had correctly determined that the plaintiffs were paid on a salary basis, even if county policy takes hours into account. There was no evidence deductions were ever taken and Harris County offered evidence that the plaintiffs were paid consistently, evidence that went unrebutted. The court further found that the judge did not err in charging the jury and did not err in denying the plaintiffs’ renewed motion for judgment as a matter of law or motion for a new trial (Moreau v. Harris County, Texas, No. 25-20045 (5th Cir. Sept. 3, 2026)).

Comp time. Lieutenants and captains in the Harris County Sheriff’s Office must work 40 hours per week. Compensatory time—or comp time—is accrued for all hours worked above 40 each workweek, maxing out at 240 hours. Lieutenants and captains can draw from this time for weeks in which they worked less than 40 hours. When a lieutenant or captain lacks comp time, the policy would permit Harris County to dock their pay, although the record did not show that the county had ever done so.

Lawsuit. A plaintiff brought this suit individually and as the representative of a putative class against Harris County, asserting various claims under the FLSA for failure to pay overtime. The parties consented to the jurisdiction of a magistrate judge. The judge ultimately granted Harris County summary judgment against these claims, denying the plaintiffs’ post-trial motions for judgment as a matter of law or a new trial. This appeal followed.

Alleged errors. Four distinct issues were present in this appeal: (1) whether the magistrate judge erred in concluding all plaintiffs were paid on a salary basis; (2) whether he erred in concluding that certain lieutenants qualified for the administrative exemption; (3) whether he erred in charging the jury; and (4) whether he erred in denying the plaintiffs’ Rule 50(b) or Rule 59 motions. The court addressed each alleged error in turn.

Salary-basis test. In order to satisfy the salary-basis test, an employer must show that there is no actual practice of salary reductions, explained the court. A plaintiff may rebut such a showing by offering contrary evidence. In this instance, the court found that Harris County had met its burden and the plaintiffs had failed to overcome it.

Harris County pointed to evidence that its lieutenants and captains all earn a standard, guaranteed salary based on their role and years of experience. That pay is calculated on a regular, non-hourly basis every two weeks. Harris County provided employees with several forms of paid leave, including comp time. Where an employee, exempt or non-exempt, does not work 40 hours in a given week, they are subject to “deductions for partial-day absences.”

Here, the record demonstrated that the plaintiffs earned the same amount each pay period, thus satisfying the first two parts of the salary-basis test. The plaintiffs were paid every two weeks, and their work was distinguishable from the standard hourly laborer, even if Harris County takes hours into account. Therefore, the only question was whether this payment was subject to reduction. The court determined that it was not.

“Certainly, Harris County’s policy could allow for impermissible—and potentially violative—deductions in salary,” said the court. However, there was no evidence that the county ever actually effectuated such deductions. To the contrary, the county offered evidence that the plaintiffs were paid consistently, evidence that the plaintiffs did not rebut. Accordingly, the court concluded that the plaintiffs were paid on a salary basis, not subject to reduction.

Administrative exemption. Next, the court considered whether the magistrate judge erred when he concluded that criminal justice lieutenants qualified for the administrative exemption because their primary duty is the administration of the county’s jails. The judge further concluded that although these plaintiffs sometimes performed floor duty tasks that would be considered non-administrative, no testimony demonstrated that these tasks “could plausibly be considered” their primary duty.

In challenging this determination, the plaintiffs focused on the second prong of the administrative exemption standard: whether their duties relate to the management or general business operations of the sheriff’s office. Here, the court agreed with Harris County’s evidence that the criminal justice lieutenants make sure “everything runs properly on a day-to-day basis” and that the work performed by those underneath them is done in a timely and correct manner. To effectuate this work, the lieutenants focus on administrative tasks, which is the type of “management” work the regulations regard as qualifying, explained the court.

Further, continued the court, the lieutenants’ occupation as law enforcement officers did not change this calculus. Although the regulations exempt some police officers and the like from exemptions, they only do so where those officers’ primary duty is front-line work. Thus, the magistrate judge correctly concluded that the criminal justice lieutenants’ primary duty was the administration of county jails.

Jury charge. Turning to the plaintiffs’ contentions with regard to the jury charge, they had raised three specific challenges on appeal: (1) the judge erred in refusing their request for “granulated” jury instructions that broke down the exemptions into sub-issues of fact under FRCP 49; (2) the judge erred in permitting the jury to answer in the affirmative as to both exemptions; and (3) the jury instructions improperly delegated questions of law to the jury.

Standard of review. Before addressing the merits of these issues, the court first resolved the parties’ dispute over the proper standard of review, concluding that the less deferential abuse of discretion standard should govern the refusal to apply granulated jury instructions under FRCP 49 and to the contention that the instructions improperly delegated questions of law to the jury. In so doing, the court noted that plain-error review would result in the same outcome.

As to the other challenge—relating to the jury’s ability to find more than one exemption applied—the court applied plain-error review.

Pattern instructions. With regard to the request for more granular jury instructions, the court found that the magistrate judge’s jury charge mirrored the Fifth Circuit Pattern instructions, noting that it was Harris County’s burden to prove—for both the administrative and executive exemptions—certain elements outlined by DOL regulations. The questions similarly tracked the pattern question for exemptions.

“These instructions not only tracked the Fifth Circuit Pattern instructions, they also correctly stated the law,” said the court, finding the magistrate judge did not abuse his discretion in refusing the more granular request, nor did he impermissibly delegate a legal question to the jury.

Affirmative answer to both exemptions. In considering whether the judge erred by impermissibly permitting the jury to answer affirmatively to both exemptions, the court found this raised a more complex issue. That plaintiffs argued that because the administrative and executive exemptions each require that the administrative or executive work be the employee’s “primary duty,” only one can provide the exemption.

On this issue, the court noted that neither it nor the other circuits have squarely addressed this primary-duty-exclusion question. Harris County asserted that the two exemptions have overlapping management functions. The magistrate judge made the same point when addressing the plaintiffs’ motion for judgment as a matter of law and finding no basis to grant it. Further complicating the issue, the FLSA permits a separate combination exemption for employees who “perform a combination of exempt duties as set forth in the regulations in this part for executive, administrative, professional, outside sales and computer employees.”

Given the complexity of this particular issue, the court found that whether a jury charge permitting the jury to conclude multiple exemptions apply is subject to reasonable debate, and for an error to be plain, it must be clear or obvious and not subject to reasonable debate. Accordingly, the magistrate judge did not plainly err in this aspect of the jury instruction.

Rule 50. Next, the court addressed whether the magistrate judge erred in denying the plaintiffs’ Rule 50(b) motion. Here, the plaintiffs argued that the evidence was insufficient for the jury to reach two conclusions: (1) that plaintiffs’ primary job duty included the management of a customarily recognized department or subdivision of Harris County, because being “in charge” of a “particular shift” is insufficient; and (2) that plaintiffs had hiring or firing abilities or could “make recommendations as to either.”

As to the first argument, the jury examined, inter alia, evidence that the sheriff’s office is divided into bureaus, divisions, sections, and shifts. DOL has emphasized that “groupings” or “teams” may constitute a department or subdivision, and that a case-by-case analysis is required. With regard to the second argument, the jury examined, inter alia, that lieutenants sat on interview boards for candidates and made recommendations regarding interview transfers.

If the sheriff’s office primary goal is the provision of public safety, it was not unreasonable for the jury to conclude that plaintiffs’ work responsibilities were the type of supporting activities that helped drive the office’s management and general business, observed the court. Accordingly, it affirmed the dismissal of the plaintiffs’ Rule 50 motion.

Rule 59. Finally, the court also affirmed the dismissal of the plaintiffs’ Rule 59 motion for a new trial. The court again noted that although the regulations and case law on this issue raise complicated questions, it was not unreasonable for the magistrate judge to conclude that the exemptions sufficiently overlapped so as to permit the jury to conclude that both applied. Thus, there was no abuse of discretion.

The case is No. 25-20045.

Judge: Higginson, S.

Attorneys: Curt Christopher Hesse (Moore & Associates) for Lynwood Moreau. Carolyn Ann Russell (Ogletree Deakins) for Harris County, Texas.

Companies: Harris County, Texas

Cases: WageHour Overtime Procedure PublicEmployees LouisianaNews MississippiNews TexasNews