Seventy five years after it was enacted, the Fair Labor Standards Act (FLSA) continues to surprise, and to remind us that it’s not how much you pay, but how, that really matters. On February 22, 2023, the U.S. Supreme Court ruled in Helix Energy Solutions v. Hewitt that even a very highly compensated individual may be entitled to overtime pay if the employer hasn’t checked all the boxes to qualify for an exemption. 

Michael Hewitt worked as tool-pusher on an offshore oil rig and typically worked 12 hours a day, seven days a week, for a 28-day period. Then he would have 28 days off. He supervised 12 to 14 other workers. Critically, he was paid a per-diem or day rate that ranged from $963 to $1,341. His annual compensation was over $200,000. 

Hewitt sued Helix, claiming he was entitled to unpaid overtime wages. Given his schedule, these would be substantial. Let’s do the numbers. 

Section 207 of the FLSA requires overtime pay at the rate of 1½ times the regular rate for every hour worked over 40 in any work week. (Lest we forget, this was devised to spur employers to hire more people.) Given Hewitt’s 84-hour-per-week schedule, that’s 44 hours of overtime. At $1,000/day ($175/hour), that would mean he was owed a whopping $11,550 per week in overtime. (There’s an argument that he would only be due additional half-time for those hours because he already had been paid for “all hours worked,” but let’s stick to the employer’s worst case scenario for now.) Assuming his 28-days-on, 28-days-off schedule, that would mean back wages of $300,300 per annum, with liquidated damages of $600,600 for each year (2 or 3, depending on the applicable statute of limitations). Not a bad payday, especially on top of the $200K he’d already pocketed. And the FLSA also requires the employer to pay a prevailing employee’s attorneys’ fees, which can easily dwarf the amount of back wages recovered.

Helix Energy maintained that Hewitt was exempt, and not entitled to overtime, as a bona fide executive employee under the “highly compensated employees” rule. To show that an employee is exempt from the overtime requirement, an employer must satisfy three tests: (1) the employee must be paid on a salary basis; (2) the salary must exceed a certain threshold; and (3) the employee’s job duties must be managerial in nature. The only issue on appeal was whether Hewitt’s day rate satisfied the salary basis test.

The salary basis test, codified at 29 CFR § 541.602(a), requires that an employee “. . . regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” Subsection 1 clarifies that “ . . . an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked.

The regulations provide a special rule for otherwise exempt employees who are paid on an hourly, daily, or shift basis in 29 CFR § 541.604(b): the salary basis test is met for such employees “if the employment arrangement also includes a guarantee of at least the minimum weekly required amount paid on a salary basis regardless of the number of hours, days or shifts worked, and a reasonable relationship exists between the guaranteed amount and the amount actually earned.”

Helix acknowledged that its compensation plan did not satisfy the requirements for 29 CFR § 541.604(b). There was no guaranteed minimum weekly amount at all, much less a guaranteed amount that bore a “reasonable relationship” to Hewitt’s typical weekly earnings. The case hinged solely on whether the day rate paid to Mr. Hewitt could satisfy the general salary basis test set forth in 29 CFR § 602(a).

In a 6-3 opinion authored by Justice Elena Kagan, the U.S. Supreme Court held that the day rate paid to Mr. Hewitt did not satisfy the salary basis test, and therefore that Hewitt was entitled to overtime. At its core, a day rate is inconsistent with a fixed salary paid regardless of the amount of time worked, or dollars paid. Likewise, a day rate is not a fixed compensation scheme “without regard to the number of days or hours worked.” (Justices Kavanaugh and Alito dissented; Justice Gorsuch thought certiorari was improvidently granted and that the high court shouldn’t have taken the case.)


When Justice Kagan was confirmed, she famously observed that “we are all originalists now.” This was a nod to her colleague Justice Antonin Scalia, who was a strict textualist and insisted that it was the Court’s job to give meaning to the actual words in a statute and that it must refrain from inferring or applying legislative intent to alter the plain meaning of the words. This is a shining case in point. The FLSA’s salary test requires a guaranteed, predictable salary, and the day rate Mr. Hewitt was paid—generous as it was—didn’t qualify. Words mean what they say, and it is encouraging that Justice Kagan is sticking to her guns.

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