Helix Energy Solutions Group, Inc. v. Hewitt

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HELIX ENERGY SOLUTIONS GROUP, INC., ET AL. v.
HEWITT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–984. Argued October 12, 2022—Decided February 22, 2023
Respondent Michael Hewitt filed an action against his employer, peti-
tioner Helix Energy Solutions Group, seeking overtime pay under the
Fair Labor Standards Act of 1938, which guarantees overtime pay to
covered employees when they work more than 40 hours a week. From
2014 to 2017, Hewitt worked for Helix on an offshore oil rig, typically
working 84 hours a week while on the vessel. Helix paid Hewitt on a
daily-rate basis, with no overtime compensation. So Hewitt’s
paycheck, issued every two weeks, amounted to his daily rate times
the number of days he had worked in the pay period. Under that com-
pensation scheme, Hewitt earned over $200,000 annually. Helix as-
serts that Hewitt was exempt from the FLSA because he qualified as
“a bona fide executive.” 29 U. S. C. §213(a)(1). Under applicable reg-
ulations, an employee is considered a bona fide executive excluded
from the FLSA’s protections if the employee meets three distinct tests:
(1) the “salary basis” test, which requires that an employee receive a
predetermined and fixed salary that does not vary with the amount of
time worked; (2) the “salary level” test, which requires that preset sal-
ary to exceed a specified amount; and (3) the job “duties” test. See 84
Fed. Reg. 51230. The Secretary of Labor has implemented the bona
fide executive standard through two separate and slightly different
rules, one “general rule” applying to employees making less than
$100,000 in annual compensation, and a different rule addressing
“highly compensated employees” (HCEs) who make at least $100,000
per year. 29 CFR §§541.100, 541.601(a), (b)(1). The general rule con-
siders employees to be executives when they are “[c]ompensated on a
salary basis” (salary-basis test); “at a rate of not less than $455 per
week” (salary-level test); and carry out three listed responsibilities—
2 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Syllabus
managing the enterprise, directing other employees, and exercising
power to hire and fire (duties test). §541.100(a). The HCE rule relaxes
only the duties test, while restating the other two. As litigated in this
case, whether Hewitt was an executive exempt from the FLSA’s over-
time pay guarantee turns solely on whether Hewitt was paid on a sal-
ary basis. The District Court agreed with Helix’s view that Hewitt was
compensated on a salary basis and granted the company summary
judgment. The Court of Appeals for the Fifth Circuit reversed, decid-
ing that Hewitt was not paid on a salary basis and therefore could
claim the FLSA’s protections. The court so held based on its examina-
tion of the two regulations that give content to the salary-basis test.
The majority first concluded that a daily-rate employee (like Hewitt)
does not fall within the main salary-basis provision of §541.602(a),
which states:
“An employee will be considered to be paid on a ‘salary basis’ . . .
if the 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 re-
duction because of variations in the quality or quantity of the work
performed. Subject to [certain exceptions], an exempt employee
must receive the full salary for any week in which the employee per-
forms any work without regard to the number of days or hours
worked.”
Second, the court held that “daily-rate” workers can qualify as paid
on a salary basis only through the “special rule” of §541.604(b), which
focuses on workers whose compensation is “computed on an hourly, a
daily or a shift basis.” Because Hewitt’s compensation concededly did
not satisfy §604(b)’s conditions, the court concluded that Hewitt, alt-
hough highly paid, was not exempt from the FLSA. Reaching the op-
posite conclusion, a dissenting opinion determined that Hewitt’s com-
pensation satisfied the salary basis test of §602(a) and that §604(b) is
not applicable to employees who fall within the HCE rule.
Held: Hewitt was not an executive exempt from the FLSA’s overtime pay
guarantee; daily-rate workers, of whatever income level, qualify as
paid on a salary basis only if the conditions set out in §541.604(b) are
met. Pp. 7–20.
(a) The critical question here is whether Hewitt was paid on a salary
basis under §602(a). A worker may be paid on a salary basis under
either §602(a) or §604(b). But Helix acknowledges that Hewitt’s com-
pensation did not satisfy §604(b)’s conditions. And the Court concludes
that Helix did not pay Hewitt on a salary basis as defined in §602(a),
a conclusion that follows from the text and the structure of the regula-
tions. Pp. 7–17.
(1) The text of §602(a) excludes daily-rate workers. An employee,
Cite as: 598 U. S. ____ (2023) 3
Syllabus
the regulation says, is paid on a salary basis only if he “receive[s] the
full salary for any week in which [he] performs any work without re-
gard to the number of days or hours worked.” Whenever an employee
works at all in a week, he must get his “full salary for [that] week”—
what §602(a)’s prior sentence calls the “predetermined amount.” That
amount must be “without regard to the number of days or hours
worked”—or as the prior sentence says, it is “not subject to reduction
because” the employee worked less than the full week. Giving lan-
guage its ordinary meaning, nothing in that description fits a daily-
rate worker, who by definition is paid for each day he works and no
others. Further, §602(a)’s demand that an employee receive a prede-
termined amount irrespective of days worked embodies the standard
meaning of the word “salary.” The “concept of ‘salary’ ” is linked, “[a]s
a matter of common parlance,” to “the stability and security of a regu-
lar weekly, monthly, or annual pay structure.” 15 F. 4th 289, 291.
Helix responds by focusing on §602(a)’s use of the word “received,” con-
tending that because Hewitt got his paycheck every two weeks, and
that check contained pay exceeding $455 (the salary level) for any
week in which he had worked, Hewitt was paid on a salary basis. But
Helix offers no reason for hinging satisfaction of the salary-basis test
on how often paychecks are distributed. And Helix’s interpretation of
the “weekly basis” phrase is not the most natural one. A “basis” of
payment typically refers to the unit or method for calculating pay, not
the frequency of its distribution. And that is how neighboring regula-
tions use the term. The “weekly basis” phrase thus works hand in
hand with the rest of §602(a) to reflect the standard meaning of a “sal-
ary,” which connotes a steady and predictable stream of pay. Pp. 8–
12.
(2) The broader regulatory structure—in particular, the role of
§604(b)—confirms the Court’s reading of §602(a). Section §604(b) lays
out a second path for a compensation scheme to meet the salary-basis
requirement. And that path is all about daily, hourly, or shift rates.
An employee’s earnings, §604(b) provides, “may be computed on” those
shorter bases without “violating the salary basis requirement” so long
as an employer “also” provides a guarantee of weekly payment approx-
imating what the employee usually earns. Section 604(b) thus speaks
directly to when daily and hourly rates are “[ ]consistent with the sal-
ary basis concept.” 69 Fed. Reg. 22184. Reading §602(a) also to cover
daily- and hourly-rate employees would subvert §604(b)’s strict condi-
tions on when their pay counts as a “salary.” By contrast, when read
as limited to weekly-rate employees, §602(a) works in tandem with
§604(b), with §604(b) taking over where §602(a) leaves off.
Helix’s argument to the contrary relies on the premise that the HCE
rule operates independently of §604(b). Even if so, a daily-rate worker
4 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Syllabus
like Hewitt is not paid on a salary basis under the plain text of §602(a).
And supposing that the HCE rule incorporates only §602(a), and not
§604(b), those two provisions still must be read to complement each
other because §602(a) cannot change meanings depending on whether
it applies to the general rule or the HCE rule. Regardless, Helix is
wrong that the HCE rule operates independently of §604(b). The HCE
rule refers to the salary-basis (and salary-level) requirement in the
same way that the general rule does. Compare §541.601(b)(1) (requir-
ing “at least $455 per week paid on a salary or fee basis”) with
§541.100(a)(1) (requiring payment “on a salary basis at a rate of not
less than $455 per week”). And the two provisions giving content to
that requirement—explaining when a person is indeed paid on a salary
basis—are §602(a) and §604(b). So both those provisions apply to both
the general and the HCE rule. There is a difference between the HCE
and general rule; it just has nothing to do with the salary-basis re-
quirement. That difference instead involves the duties standard,
which is more flexible in the HCE rule. Pp. 13–17.
(b) The Court’s reading of the relevant regulations properly con-
cludes this case. Helix urges the Court to consider supposed policy
consequences of that reading, but even the most formidable policy ar-
guments cannot overcome a clear textual directive. See BP p.l.c. v.
Mayor and City Council of Baltimore, 593 U. S. ___, ___. And anyway,
Helix’s appeal to consequences appears less than formidable in the
context of the FLSA’s regulatory scheme. Helix’s complaint about
“windfalls” for high earners fails, as the HCE rule itself reflects Con-
gress’s choice not to set a simple income level as the test for exemption.
As to Helix’s cost-based objections, the whole point of the salary-basis
test is to preclude employers from paying workers neither a true salary
nor overtime. So too, Helix’s complaints about retroactive liability lack
force because the salary-basis test is not novel, but rather traces back
to the FLSA’s beginnings. Pp. 17–20.
15 F. 4th 289, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, SOTOMAYOR, BARRETT, and JACKSON, JJ., joined. GORSUCH,
J., filed a dissenting opinion. KAVANAUGH, J., filed a dissenting opinion
in which ALITO, J., joined.
Cite as: 598 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–984
_________________
HELIX ENERGY SOLUTIONS GROUP, INC., ET AL.,
PETITIONERS v. MICHAEL J. HEWITT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 22, 2023]
JUSTICE KAGAN delivered the opinion of the Court.
The Fair Labor Standards Act of 1938 (FLSA) guarantees
that covered employees receive overtime pay when they
work more than 40 hours a week. But an employee is not
covered, and so is not entitled to overtime compensation, if
he works “in a bona fide executive, administrative, or pro-
fessional capacity,” as those “terms are defined” by agency
regulations. 29 U. S. C. §213(a)(1). Under the regulations,
an employee falls within the “bona fide executive” exemp-
tion only if (among other things) he is paid on a “salary
basis.” 29 CFR §541.100(a)(1) (2015); see §541.601(b)(1).
Additional regulations elaborate on the salary-basis re-
quirement, as applied to both lower-income and higher-in-
come employees.
The question here is whether a high-earning employee is
compensated on a “salary basis” when his paycheck is based
solely on a daily rate—so that he receives a certain amount
if he works one day in a week, twice as much for two days,
three times as much for three, and so on. We hold that such
an employee is not paid on a salary basis, and thus is enti-
tled to overtime pay.
2 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
I
A
Congress enacted the FLSA to eliminate both “substand-
ard wages” and “oppressive working hours.” Barrentine v.
Arkansas-Best Freight System, Inc., 450 U. S. 728, 739
(1981). The statute addresses the former concern by guar-
anteeing a minimum wage. See 29 U. S. C. §206. It ad-
dresses the latter by requiring time-and-a-half pay for work
over 40 hours a week—even for workers whose regular com-
pensation far exceeds “the statutory minimum.” Overnight
Motor Transp. Co. v. Missel, 316 U. S. 572, 577 (1942); see
§207. The overtime provision was designed both to “com-
pensate [employees] for the burden” of working extra-long
hours and to increase overall employment by incentivizing
employers to widen their “distribution of available work.”
Id., at 578. Employees therefore are not “deprived of the
benefits of [overtime compensation] simply because they
are well paid.” Jewell Ridge Coal Corp. v. Mine Workers,
325 U. S. 161, 167 (1945).
The FLSA, however, exempts certain categories of work-
ers from its protections, including the overtime-pay guar-
antee. The statutory exemption relevant here applies to
“any employee employed in a bona fide executive, adminis-
trative, or professional capacity . . . (as such terms are de-
fined and delimited from time to time by regulations of the
Secretary [of Labor]).” §213(a)(1). Under that provision,
the Secretary sets out a standard for determining when an
employee is a “bona fide executive.” If that standard is met,
the employee has no right to overtime wages.
From as early as 1940, the Secretary’s “bona fide execu-
tive” standard has comprised three distinct parts. See 84
Fed. Reg. 51230 (2019) (summarizing the standard’s his-
tory). The first is the “salary basis” test—the subject mat-
ter of this case. Ibid. The basic idea for now (greater detail
and disputation will follow) is that an employee can be a
bona fide executive only if he receives a “predetermined and
Cite as: 598 U. S. ____ (2023) 3
Opinion of the Court
fixed salary”—one that does not vary with the precise
amount of time he works. Ibid. The second element is the
“salary level” test: It asks whether that preset salary ex-
ceeds a specified amount. Ibid. And the third is the “du-
ties” test, which focuses on the nature of the employee’s job
responsibilities. Ibid. When all three criteria are met, the
employee (because considered a bona fide executive) is ex-
cluded from the FLSA’s protections.
Now, though, add a layer of complexity to that descrip-
tion: The Secretary has implemented the bona fide execu-
tive standard through two separate and slightly different
rules, one applying to lower-income employees and the
other to higher-income ones. The so-called “general rule”
pertains to employees making less than $100,000 in “total
annual compensation,” including not only salary but also
commissions, bonuses, and the like. 29 CFR §§541.100,
541.601(a), (b)(1).1 That rule considers employees to be ex-
ecutives when they are “[c]ompensated on a salary basis”
(salary-basis test); “at a rate of not less than $455 per week”
(salary-level test); and carry out three listed responsibili-
ties—managing the enterprise, directing other employees,
and exercising power to hire and fire (duties test).
§541.100(a). A different rule—the one applicable here—ad-
dresses employees making at least $100,000 per year
(again, including all forms of pay), who are labeled “highly
compensated employees.” §541.601. That rule—usually
known as the HCE rule—amends only the duties test, while
restating the other two. In the HCE rule, the duties test
becomes easier to satisfy: An employee must “regularly per-
form[ ]” just one (not all) of the three responsibilities listed
in the general rule. §541.601(a); see 69 Fed. Reg. 22174(2004) (explaining that the HCE rule uses a “more flexible
——————
1 All citations to the Secretary’s regulations refer to the 2015 version,
which applied during the period in dispute. New regulations went into
effect in 2020, making some changes but retaining the salary-basis test.
4 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
duties standard” and thus leads to more exemptions). But
the salary-basis and salary-level tests carry over from the
general rule to the HCE rule in identical form. The HCE
rule too states that an employee can count as an executive
(and thus lose the FLSA’s protections) only if he receives “at
least $455 per week paid on a salary . . . basis.”
§541.601(b)(1).
Two other regulations give content to the salary-basis
test at the heart of this case. (After giving full citations, we
refer to them simply as §602(a) and §604(b).) The main sal-
ary-basis provision, set out in two sentences of §541.602(a),
states:
“An employee will be considered to be paid on a ‘salary
basis’ . . . if the employee regularly receives each pay
period on a weekly, or less frequent basis, a predeter-
mined 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. Subject to [certain exceptions], an ex-
empt employee must receive the full salary for any
week in which the employee performs any work with-
out regard to the number of days or hours worked.”
The rule thus ensures that the employee will get at least
part of his compensation through a preset weekly (or less
frequent) salary, not subject to reduction because of exactly
how many days he worked. If, as the rule’s second sentence
drives home, an employee works any part of a week, he
must receive his “full salary for [that] week”—or else he is
not paid on a salary basis and cannot qualify as a bona fide
executive. Ibid.
Another provision, §541.604(b), focuses on workers whose
compensation is “computed on an hourly, a daily or a shift
basis,” rather than a weekly or less frequent one. That sec-
tion states that an employer may base an employee’s pay on
an hourly, daily, or shift rate without “violating the salary
Cite as: 598 U. S. ____ (2023) 5
Opinion of the Court
basis requirement” or “losing the [bona fide executive] ex-
emption” so long as two conditions are met. First, the em-
ployer must “also” guarantee the employee at least $455
each week (the minimum salary level) “regardless of the
number of hours, days or shifts worked.” Ibid. And second,
that promised amount must bear a “reasonable relation-
ship” to the “amount actually earned” in a typical week—
more specifically, must be “roughly equivalent to the em-
ployee’s usual earnings at the assigned hourly, daily or shift
rate for the employee’s normal scheduled workweek.” Ibid.Those conditions create a compensation system functioning
much like a true salary—a steady stream of pay, which the
employer cannot much vary and the employee may thus
rely on week after week. See 69 Fed. Reg. 22184 (explain-
ing that §604(b)’s conditions ensure that daily or hourly pay
is “[ ]consistent with the salary basis concept”).
B
From 2014 to 2017, respondent Michael Hewitt worked
for petitioner Helix Energy Solutions Group as a “tool-
pusher” on an offshore oil rig. Reporting to the captain,
Hewitt oversaw various aspects of the rig’s operations and
supervised 12 to 14 workers. He typically, but not invaria-
bly, worked 12 hours a day, seven days a week—so 84 hours
a week—during a 28-day “hitch.” He then had 28 days off
before reporting back to the vessel.
Helix paid Hewitt on a daily-rate basis, with no overtime
compensation. The daily rate ranged, over the course of his
employment, from $963 to $1,341 per day. His paycheck,
issued every two weeks, amounted to his daily rate times
the number of days he had worked in the pay period. So if
Hewitt had worked only one day, his paycheck would total
(at the range’s low end) $963; but if he had worked all 14
days, his paycheck would come to $13,482. Under that com-
pensation scheme, Helix paid Hewitt over $200,000 annu-
ally.
6 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
Hewitt filed this action under the FLSA to recover over-
time pay. Helix asserted in response that Hewitt was ex-
empt from the FLSA because he qualified as a bona fide ex-
ecutive. The dispute on that issue turned solely on whether
Hewitt was paid on a salary basis; Hewitt conceded that his
employment met the exemption’s other requirements (the
salary-level and duties tests). The District Court agreed
with Helix’s view that Hewitt was compensated on a salary
basis, and accordingly granted the company summary judg-
ment. See App. to Pet. for Cert. 83–87.
The Court of Appeals for the Fifth Circuit, sitting en
banc, reversed that judgment, deciding that Hewitt was not
paid on a salary basis and therefore could claim the FLSA’s
protections. See 15 F. 4th 289 (2021). The 12-judge major-
ity first held that a daily-rate employee (like Hewitt) does
not fall within §602(a) of the Secretary’s regulations. That
section, the court reasoned, covers only employees whose
“compensation [is] paid ‘on a weekly[ ] or less frequent ba-
sis,’ ‘without regard to the number of days or hours
worked’ ”—the very opposite of a paid-by-the-day employee.
Id., at 291. Such “daily-rate” workers, the court continued,
can qualify as salaried only through the “special rule” of
§604(b). Ibid. But Hewitt’s compensation did not satisfy
§604(b)’s conditions; indeed, the court noted, “Helix does
not even purport” to have met them. Id., at 292. The court
thus concluded that Hewitt, although highly paid, was not
exempt from the FLSA. Six judges dissented in two opin-
ions. The more expansive dissent argued that Hewitt’s
compensation “satisfied the salary basis test” of §602(a).
Id., at 307 (opinion of Jones, J.). It further concluded that
§604(b) is not applicable at all to high-income employees—
i.e., those falling within the HCE rule because they earn
over $100,000. See id., at 309.
We granted certiorari, 596 U. S. ___ (2022), and now af-
firm.
Cite as: 598 U. S. ____ (2023) 7
Opinion of the Court
II
The critical question here is whether Hewitt was paid on
a salary basis under §602(a) of the Secretary’s regulations.
Indeed, the parties have taken all other issues off the table.
They agree that Hewitt was exempt from the FLSA only if
he was a bona fide executive. They agree, as they must,
that under the regulations, a high-income employee like
Hewitt counts as an executive when (but only when) he is
paid on a salary basis; the salary paid is at or above the
requisite level ($455 per week); and he performs at least one
listed duty. See §541.601; supra, at 3–4.2 In denying exec-
utive status, Hewitt puts all his chips on that standard’s
first part: He argues only that he was not paid on a salary
basis. See Brief for Respondent i–ii, 1. Helix then narrows
the issues still further. As described above, a worker may
be paid on a salary basis under either §602(a) or §604(b).
See supra, at 4–5. But Helix acknowledges that Hewitt’s
compensation did not satisfy §604(b)’s conditions. That is
because Helix did not guarantee that Hewitt would receive
each week an amount (above $455) bearing a “reasonable
relationship” to the weekly amount he usually earned. See
Brief for Petitioners 28; supra, at 5–6. So again, everything
turns on whether Helix paid Hewitt on a salary basis as
described in §602(a). If yes, Hewitt was exempt from the
FLSA and not entitled to overtime pay; if no, he was covered
under the statute and can claim that extra money.
——————
2 At argument in this Court, Helix suggested that the salary-basis com-
ponent of the regulations is an impermissible extrapolation from the
statutory exemption for workers “employed in a bona fide executive . . .
capacity.” 29 U. S. C. §213(a); see Tr. of Oral Arg. 33–37. But Helix did
not raise that argument in the courts below. Following our usual prac-
tice, we therefore decline to address its merits. See, e.g., Kingdomware
Technologies, Inc. v. United States, 579 U. S. 162, 173 (2016); see post, at
2 (GORSUCH, J., dissenting) (agreeing that Helix “failed to raise” the ar-
gument, and also declining to express a view of its merits); but cf. post,
at 4–5 (KAVANAUGH, J., dissenting) (recognizing that the argument may
be forfeited, but opining on it anyway).
8 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
The answer is no: Helix did not pay Hewitt on a salary
basis as defined in §602(a). That section applies solely to
employees paid by the week (or longer); it is not met when
an employer pays an employee by the day, as Helix paid
Hewitt. Daily-rate workers, of whatever income level, are
paid on a salary basis only through the test set out in
§604(b) (which, again, Helix’s payment scheme did not sat-
isfy). Those conclusions follow from both the text and the
structure of the regulations. And Helix’s various policy
claims cannot justify departing from what the rules say.3
A
Consider again §602(a)’s text, focusing on how it excludes
daily-rate workers. An employee, the regulation says, is
paid on a salary basis if but only if he “receive[s] the full
——————
3 We appreciate JUSTICE GORSUCH’s concern that the question we ask
and answer is not quite the one Helix’s petition for certiorari urged upon
us. As JUSTICE GORSUCH explains, Helix’s petition framed the issue as
whether an employee whose pay scheme meets the three-part test of the
HCE rule (§541.601) also has to meet §604(b)’s conditions to be exempt
from the FLSA. See post, at 1–2. But both parties’ merits briefing made
clear the importance of an antecedent question: whether Hewitt’s pay
scheme in fact satisfied the HCE rule’s salary-basis component, as set
out in §602(a). See Brief for Petitioners 24–28 (lead argument); Brief for
Respondent 14–28 (lead argument); Reply Brief 1–9 (lead argument).
Resolution of that §602(a) issue is a necessary “predicate to an intelligent
resolution of the question presented.” Caterpillar Inc. v. Lewis, 519 U. S.
61, 75, n. 13 (1996). Indeed, Helix’s counsel urged us to answer it—even
assuming Helix would lose—rather than dismiss this case as improvi-
dently granted. See Tr. of Oral Arg. 39–40 (“I would prefer that you just
answer the question”—even if “adversely”—“because I don’t think there’s
a basis for a DIG”). And our resolution of that predicate issue itself re-
veals the answer to Helix’s initial formulation of the question presented.
In setting out the pertinent regulatory structure, we show that §602(a)
and §604(b) are independent routes for satisfying the HCE rule’s salary-
basis component. So a pay scheme meeting §602(a) and the HCE rule’s
other requirements does not also have to meet §604(b) to make a worker
exempt. See infra, at 13–14.
Cite as: 598 U. S. ____ (2023) 9
Opinion of the Court
salary for any week in which [he] performs any work with-
out regard to the number of days or hours worked.” To
break that up just a bit: Whenever an employee works at
all in a week, he must get his “full salary for [that] week”—
what §602(a)’s prior sentence calls the “predetermined
amount.” That amount must be “without regard to the
number of days or hours worked”—or as the prior sentence
says, it is “not subject to reduction because” the employee
worked less than the full week. Nothing in that description
fits a daily-rate worker, who by definition is paid for each
day he works and no others. Suppose (to approximate the
compensation scheme here) such a worker is paid $1,000
each day, and usually works seven days a week, for a total
of $7,000. Now suppose he is ill and works just one day in
a week, for a total of $1,000. Is that lesser amount (as Helix
argues) a predetermined, “full salary for [the] week”—or is
it just one day’s pay out of the usual seven? Has the amount
been paid “without regard to the number of days” he
worked—or precisely with regard to that number? If ordi-
nary language bears ordinary meaning, the answer to those
questions is: the latter. A daily-rate worker’s weekly pay is
always a function of how many days he has labored. It can
be calculated only by counting those days once the week is
over—not, as §602(a) requires, by ignoring that number and
paying a predetermined amount.
In demanding that an employee receive a fixed amount
for a week no matter how many days he has worked, §602(a)
embodies the standard meaning of the word “salary.” At
the time the salary-basis test came into effect, just as today,
a “salary” referred to “fixed compensation regularly paid, as
by the year, quarter, month, or week.” Webster’s New In-
ternational Dictionary 2203 (2d ed. 1949); see Webster’s
Third New International Dictionary 2003 (2002) (similar).
“Salary” was thus “often distinguished from wages,” which
denoted “[p]ay given for labor” at “short stated intervals.”
Webster’s New International Dictionary, at 2203, 2863. As
10 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
the Court of Appeals put the point, the “concept of ‘salary’ ”
is linked, “[a]s a matter of common parlance,” to “the stabil-
ity and security of a regular weekly, monthly, or annual pay
structure.” 15 F. 4th, at 291. Take away that kind of
paycheck security and the idea of a salary also dissolves. A
worker paid by the day or hour—docked for time he takes
off and uncompensated for time he is not needed—is usually
understood as a daily or hourly wage earner, not a salaried
employee. So in excluding those workers—once again, be-
cause they do not receive a preset weekly salary regardless
of the number of days worked—the salary-basis test just re-
flects what people ordinarily think being “salaried” means.
Helix primarily responds by invoking §602(a)’s statement
that an employee (to be salaried) must “receive[ ] each pay
period on a weekly[] or less frequent basis” a preset and
non-reducible sum. At first glance (and actually, see below,
on second too), that language just confirms everything al-
ready shown: An employee must be paid on a “weekly [or
biweekly or monthly] basis,” not on a daily or hourly one.
Or said more fully, the “basis” in that phrase is the unit of
time used to calculate pay, and that unit must be a week or
less frequent measure; it cannot be a day, or other more fre-
quent measure, as it was for Hewitt. See Webster’s New
International Dictionary, at 225, 227 (defining “basis” and
“base” as the “foundation” of a thing, “thus, a price used as
a unit from which to calculate other prices”). But Helix con-
tends that the single word “receives” converts §602(a)’s fo-
cus: In saying that an employee must “receive[ ]” a fixed
amount on a weekly or less frequent basis, the provision
mandates only that he get his paycheck no more often than
once a week (which of course most employees do). See Brief
for Petitioners 26. Because Hewitt’s paycheck came every
two weeks, and because that check always contained pay
exceeding $455 (the salary level) for any week he had
worked at all, Helix concludes that Hewitt was paid, under
Cite as: 598 U. S. ____ (2023) 11
Opinion of the Court
§602(a), on a salary basis. See ibid.4
But that interpretation of the “weekly basis” phrase—
even putting §602(a)’s other language to the side—is not the
most natural one. As just suggested, a “basis” of payment
typically refers to the unit or method for calculating pay,
not the frequency of its distribution. Most simply put, an
employee paid on an hourly basis is paid by the hour, an
employee paid on a daily basis is paid by the day, and an
employee paid on a weekly basis is paid by the week—irre-
spective of when or how often his employer actually doles
out the money. The inclusion of the word “receives” in
§602(a) does not change that usual meaning. Suppose a
lawyer tells a client that she wishes to “receive her pay on
an hourly basis.” See Tr. of Oral Arg. 22–24. The client
would understand that the lawyer is proposing an hourly
billable rate, not delivery of a paycheck every hour. Or con-
sider a nurse who says she gets paid on a daily basis. She
means that she receives compensation only for the days she
works—not that she collects a paycheck every day. So too
here, an employee receives compensation on a weekly—as
opposed to a daily or hourly—basis, as §602(a) demands,
when he gets paid a weekly rate. The provision’s temporal
dividing line is not about paycheck frequency.
Our reading of §602(a) also tracks how neighboring regu-
lations use the term “basis” of payment. Over and over in
the Secretary’s rules, that term means the unit or method
used to calculate earnings. So, for example, one provision
states that “additional compensation may be paid on any
basis (e.g., flat sum, bonus payment [or] straight-time
hourly amount).” §541.604(a). Another provision defines
what it means to be “paid on a ‘fee basis,’ ” differentiating
——————
4 Helix offers no sensible reason—actually no reason at all—for hinging
satisfaction of the salary-basis test on how often paychecks are distrib-
uted. And we cannot think of any. But we need not further stretch our
powers of imagination for, as we next explain, we cannot find such a
paycheck-timing notion in the rule’s text.
12 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
that method from “[p]ayments based on the number of
hours or days worked.” §541.605(a). Still another says that
for one class of employees, the salary-level test “may be met
by compensation on an hourly basis” of “not less than
$27.63 an hour.” §541.600(d). And as discussed below,
§604(b) refers to earnings computed “on an hourly, a daily
or a shift basis” as distinct from “amount[s] paid on a salary
basis regardless of the number of hours, days or shifts
worked.” For now, the point is simply that all those regu-
lations use the language of “basis” in a similar vein—to de-
scribe the unit used to determine payment. And consistent
with that usage, §602(a)’s demand that a salaried worker
get a preset, fixed amount “on a weekly[ ] or less frequent
basis” means that his paycheck reflects how many weeks—
not days or hours—he has worked.
The “weekly basis” phrase thus works hand in hand with
the rest of §602(a). Every part of the provision describes
those paid a weekly rate, rather than a daily or hourly one.
Recall that an employee, to meet the salary-basis test, must
“receive [his] full salary for any week” in which he works at
all. That “predetermined amount” cannot be changed be-
cause of “the number of days or hours” an employee actually
labors. The amount must instead be paid “without regard
to [that] number.” Or said otherwise, the amount must be
paid on “a weekly basis”—again, by the week, not by the
day or hour. All that regulatory language—each phrase
adding onto and reinforcing the others—reflects the stand-
ard meaning of a “salary,” which connotes a steady and pre-
dictable stream of pay, week after week after week. Put it
all together and a daily-rate worker does not qualify under
§602(a) as a salaried employee—even if (like Hewitt) his
daily rate is high.5
——————
5 The dissent, unlike Helix, tries just to power past the regulatory text.
See post, at 2–3 (opinion of KAVANAUGH, J.). The dissent reasons that
because Hewitt received more than $455 for a day’s work, he must have
been paid on a salary basis. See ibid. That is a non-sequitur to end all
Cite as: 598 U. S. ____ (2023) 13
Opinion of the Court
B
The broader regulatory structure—in particular, the role
of §604(b)—confirms our reading of §602(a). Recall that
§604(b) lays out a second path—apart from §602(a)—ena-
bling a compensation scheme to meet the salary-basis re-
quirement. See supra, at 4–5. And that second route is all
about daily, hourly, or shift rates. Whereas §602(a) ad-
dresses payments on “a weekly[ ] or less frequent basis,”
§604(b) concerns payments “on an hourly, a daily or a shift
basis.” An employee’s earnings, §604(b) provides, “may be
computed on” those shorter bases without “violating the sal-
ary basis requirement” so long as an employer “also” pro-
vides a guarantee of weekly payment approximating what
——————
non-sequiturs. Hewitt’s high daily pay ensured that the HCE rule’s sal-
ary-level requirement would not have prevented his exemption: $963 (per
day) is indeed more than $455 (per week). But before any discussion of
salary level comes in, an employer must pay an employee on a salary
basis. And here is where it helps to really look at §602(a)’s text, because
it describes when an employee is paid on a “salary basis.” He is paid that
way (pardon the repetition) when he gets a “predetermined amount” that
cannot be changed because of “the number of days or hours” he labors,
but instead must be paid “without regard to [that] number”; when he
receives his “full salary for any week” in which he works even one day;
and when he is paid “on a weekly basis.” Or, one might say that an em-
ployee is paid on “a salary basis,” within the regulation’s meaning, when
he gets what ordinary people think of as a salary. And contra the dissent,
the regulation’s “all or part” reference says nothing different. That term
makes clear that a worker can be paid on a salary basis even if he addi-
tionally gets non-salary compensation, like a bonus. But the employee
still must be paid a salary. And Hewitt was not. He received a high day
rate (higher than lots of salaries); but he did not get a salary (of $963 or
any other amount) because his weekly take-home pay could be as little
as $963 or as much as $13,482, depending on how many days he worked.
And if all that leaves the tiniest doubt—well, still we are not done. The
next part of this opinion, concerning regulatory structure, confirms all
we have said about §602(a)’s meaning. We do not know why the dissent
calls that analysis an “alternative rationale.” Post, at 2. It is simply a
structural argument in support of a more narrowly focused textual one.
Here, text and structure go together in refuting the dissent’s view.
14 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
the employee usually earns. See supra, at 4–5. Section
604(b) thus speaks directly to when daily and hourly rates
are “[ ]consistent with the salary basis concept.” 69 Fed.
Reg. 22184; see supra, at 5. And by doing so, the provision
reinforces the exclusion of those shorter rates from
§602(a)’s domain. Were §602(a) also to cover daily- and
hourly-rate employees, it would subvert §604(b)’s strict con-
ditions on when their pay counts as a “salary.” By contrast,
when §602(a) is limited to weekly-rate employees, it works
in tandem with §604(b). The two then offer non-overlap-
ping paths to satisfy the salary-basis requirement, with
§604(b) taking over where §602(a) leaves off.
Helix’s argument to the contrary relies on carting §604(b)
off the stage. (So too the principal dissent’s, see post, at 3—
so we do not describe separately why that opinion is wrong.)
True enough, Helix says, that §604(b) usually provides an
alternative route for meeting the salary-basis requirement.
See Brief for Petitioners 9–11, 46. But that is not so, Helix
asserts, when highly compensated employees like Hewitt
are involved. Recall that the Secretary’s regulations sepa-
rately prescribe—in the “general rule” and the HCE rule—
how lower- and higher-income employees satisfy the three-
part standard for bona fide executive status. See supra, at
3–4. On Helix’s view, only the general rule (for lower-in-
come workers) has two different avenues—§602(a) and
§604(b)—for meeting the salary-basis test. The HCE rule,
Helix argues, incorporates only §602(a); it is independent of
§604(b). See Brief for Petitioners 28 (“The separate require-
ments of [§604] do not apply to the HCE regulation”). And
with §604(b) out of the way, Helix does not have to confront
(or so it says) the argument above—that it is anomalous to
read §602(a) as covering daily-rate workers when that is
§604(b)’s explicit function.
But to begin with, Helix could not succeed even if it were
right about the (supposedly nonexistent) relationship be-
tween the HCE rule and §604(b). That is so for two reasons.
Cite as: 598 U. S. ____ (2023) 15
Opinion of the Court
First, even without support from §604(b), the plain text of
§602(a) excludes daily-rate workers like Hewitt, for all the
reasons given in Part II–A. See supra, at 8–12. And Helix
of course acknowledges that it must comply with §602(a) to
satisfy the HCE rule’s salary-basis requirement. See supra,
at 7. Second, even on Helix’s view of the HCE rule, §604(b)
in fact confirms the plain-text, weekly-rate-only reading of
§602(a). Helix, after all, agrees that both provisions serve
as pathways to meeting the salary-basis test when the gen-
eral rule (for lower-income workers) is involved. See supra,
at 14. And if in that context (as just shown) §604(b) con-
firms that §602(a) applies only to weekly-rate employees,
then the same must be true in the HCE context. For §602(a)
cannot change meanings depending on whether it applies
to the general rule or the HCE rule. It applies to both, and
must mean the same thing in either context. So even sup-
posing that the HCE rule incorporates only §602(a), and not
§604(b), the two provisions still must be read to complement
each other.
In any event, Helix is wrong that the HCE rule operates
independently of §604(b). The HCE rule refers to the sal-
ary-basis (and salary-level) requirement in the same way
that the general rule does. Compare §541.601(b)(1) (requir-
ing “at least $455 per week paid on a salary or fee basis”)
with §541.100(a)(1) (requiring payment “on a salary basis
at a rate of not less than $455 per week”). And as already
described, the two provisions giving content to that require-
ment—explaining when a person is indeed paid on a salary
basis—are §602(a) and §604(b). See supra, at 4–5, 13. So
both those provisions should apply to both the general and
the HCE rule—because both the former serve to define
what both the latter identically require. Helix tries to avoid
that reasoning by noting that a later version of the HCE
rule than the one governing this case cross-references
§602(a) but not §604(b). See Brief for Petitioners 29–30,
16 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
and n. 7. But that version is concededly not the rule at is-
sue—which contains cross-references to neither provision,
so offers no basis for Helix’s distinction. And anyhow, He-
lix’s own arguments belie the import of the added cross-ref-
erence. The general rule, in both its earlier and its later
versions, also cross-references §602(a) but not §604(b)—yet
Helix acknowledges that both those provisions apply in that
(lower-income) context. See id., at 9–11, 46. There is no
reason to give different meaning to the same cross-refer-
ence scheme in the later HCE rule. The upshot is that
§604(b) applies, just as §602(a) does, to the HCE and gen-
eral rules alike.
There is of course a difference between the HCE and gen-
eral rules; it just has nothing to do with the salary-basis
requirement. As Helix notes, the HCE rule is “streamlined”
as compared to the one for lower-income workers. See id.,
at 12, 29. But the HCE rule’s text makes clear what it is
streamlined with respect to. Not salary basis, which (as just
shown) is described identically for higher- and lower-in-
come workers. Nor salary level, which is set at $455 per
week for both groups. Rather, the difference is with respect
to workplace duties. As noted above, lower-income employ-
ees cannot qualify as bona fide executives unless (1) their
primary job is management; (2) they regularly direct the
work of others; and (3) they have authority to hire and fire.
See §541.100(a); supra, at 3. But higher-income employees
need “regularly perform[ ]” only “one” of those “responsibil-
ities” to so qualify. See §541.601(a). That “more flexible
duties standard” eases the way to executive status, and so
to exemption from the FLSA. 69 Fed. Reg. 22174. But the
HCE rule’s streamlining stops at that point. Again, the rule
leaves untouched the salary-basis requirement—so incor-
porates §604(b) as well as §602(a). And §604(b)’s focus on
daily and hourly workers confirms that §602(a)—as its own
text shows—pertains only to employees paid by the week
(or longer). Hewitt was not.
Cite as: 598 U. S. ____ (2023) 17
Opinion of the Court
C
Our reading of the relevant regulations, as laid out above,
properly concludes this case. Helix urges us to consider the
policy consequences of that reading, labeling them “far-
reaching” and “deleterious.” Reply Brief 24. In Helix’s
view, holding that §602(a)’s salary-basis test never captures
daily-rate workers will give “windfalls” to high earners, dis-
rupt and “increase costs” of industry operations, and “im-
pos[e] significant retroactive liability.” Id., at 24, 26; Brief
for Petitioners 48. But as this Court has explained, “even
the most formidable policy arguments cannot overcome a
clear” textual directive. BP p.l.c. v. Mayor and City Council
of Baltimore, 593 U. S. ___, ___ (2021) (slip op., at 12) (in-
ternal quotation marks omitted). And anyway, Helix’s ap-
peal to consequences appears something less than formida-
ble in the context of the FLSA’s regulatory scheme. Indeed,
it is Helix’s own position that, if injected into that plan,
would produce troubling outcomes—because it would deny
overtime pay even to daily-rate employees making far less
money than Hewitt.
Initially, Helix’s complaint about “windfalls” for high
earners fails in view of what this Court has observed about
the FLSA: Workers are not “deprived of the benefits of the
Act simply because they are well paid.” Jewell Ridge, 325
U. S., at 167 (explaining that the FLSA’s breadth fits its
aims of deterring overwork and “spread[ing] employment”);
see supra, at 2. The Secretary of Labor has often reiterated
that point, recognizing since the FLSA’s enactment that
Congress elected not to exempt all well-compensated work-
ers. See, e.g., 69 Fed. Reg. 22173; see also 15 F. 4th, at 290
(case below) (“Congress has repeatedly rejected efforts to
categorically exempt all highly paid employees from over-
time requirements”). That statutory choice undergirds how
the HCE rule works. The rule spells out when higher-in-
come employees like Hewitt are exempt from the FLSA (be-
18 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
cause they are “bona fide executive[s]”); but so too, it estab-
lishes when those workers are covered (because they are
not). In thus carving up the class of higher-income workers,
the salary-basis requirement is hardly unique. Another
provision of the HCE rule states, for example, that various
workers in “maintenance, construction and similar occupa-
tions” are never exempt as executives, “no matter how
highly paid they might be.” §541.601(d). Throughout, the
HCE rule reflects the statutory choice not to set a simple
income level as the test for exemption. Some might have
made a different choice, but that cannot affect what this
Court decides.
Nor do Helix’s operational and cost-based objections
move the needle. Helix could come into compliance with the
salary-basis requirement for Hewitt and similar employees
in either of two ways. It could add to Hewitt’s per-day rate
a weekly guarantee that satisfies §604(b)’s conditions. Or
it could convert Hewitt’s compensation to a straight weekly
salary for time he spends on the rig. Helix protests that
either option would make it pay for days Hewitt has not
worked. See Reply Brief 25–26. But that is just to say that
Helix wishes neither to pay employees a true salary nor to
pay them overtime. And the whole point of the salary-basis
requirement is to take that third option off the table, even
though doing so may well increase costs. Of course, were
that requirement novel, Helix’s complaint about retroactive
liability could have force. See Christopher v. SmithKline
Beecham Corp., 567 U. S. 142, 155–157 (2012). But as de-
scribed above, the salary-basis test, in largely the form it
exists today, goes back to nearly the FLSA’s beginnings.
See supra, at 2–3, 9. And the governing regulations—both
§602(a) and §604(b)—make clear what that test means for
a daily-rate worker like Hewitt: Because he is not paid on a
salary basis, he is entitled to overtime compensation. So as
the Court of Appeals remarked, nothing about today’s deci-
sion should “come as a surprise.” 15 F. 4th, at 296.
Cite as: 598 U. S. ____ (2023) 19
Opinion of the Court
It is in fact Helix’s position that would create disturbing
consequences, by depriving even workers at the heartland
of the FLSA’s protection—those paid less than $100,000 an-
nually—of overtime pay. The problem arises because, as
explained above, §602(a) applies not only to the HCE rule
but also to the general rule, exempting lower-earning em-
ployees as bona fide executives. See supra, at 3–4, 14. And
§602(a) must mean the same thing as applied to both rules;
not even Helix argues otherwise. So on Helix’s view, any
daily-rate employee who meets the general rule’s three-part
duties test; gets a paycheck no more frequently than every
week; and receives at least $455 per week (about $24,000
per year) is excluded from the FLSA’s overtime protections.
See §541.100; §602(a); Brief for Petitioners 26–27, 37. It is
unclear how many, and what kinds of, employees are in that
group, given the relative strictness of the general rule’s du-
ties test. But, for example, two organizations representing
nurses have filed amicus briefs here, and it is easy to see
why. See Brief for National Nurses United as Amicus Cu-
riae; Brief for Massachusetts Nurses Association as Amicus
Curiae. Some nurses working on a per-day or per-shift ba-
sis are likely to meet the general rule’s duties test; and their
employers would assure them $455 per week in a heartbeat
if doing so eliminated the need to pay overtime. And
nurses, in the Government’s view, are not alone: They “are
just one of the many examples” of workers paid less than
$100,000 a year who would, if Helix prevailed, lose their
entitlement to overtime compensation. Tr. of Oral Arg. 95–
96. That consequence, unlike the ones Helix raises, is diffi-
cult, if not impossible, to reconcile with the FLSA’s design.
III
A daily-rate employee like Hewitt is not paid on a salary
basis under §602(a) of the Secretary’s regulations. He may
qualify as paid on salary only under §604(b). Because
Hewitt’s compensation did not meet §604(b)’s conditions, it
20 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
could not count as a salary. So Hewitt was not exempt from
the FLSA; instead, he was eligible under that statute for
overtime pay. We accordingly affirm the judgment below.
It is so ordered.
Cite as: 598 U. S. ____ (2023) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–984
_________________
HELIX ENERGY SOLUTIONS GROUP, INC., ET AL.,
PETITIONERS v. MICHAEL J. HEWITT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 22, 2023]
JUSTICE GORSUCH, dissenting.
The Court granted certiorari to answer this question:
“Whether a supervisor making over $200,000 each year is
entitled to overtime pay because the standalone regulatory
exemption set forth in 29 C.F.R. §541.601 remains subject
to the detailed requirements of 29 C.F.R. §541.604 when de-
termining whether highly compensated supervisors are ex-
empt from the [Fair Labor Standards Act]’s overtime-pay
requirements.” Pet. for Cert. i–ii. In other words, we
agreed to decide which regulations certain well-paid em-
ployees must satisfy to fit within the overtime-pay exemp-
tion. Must they satisfy only §541.601? Or must they satisfy
§541.601 and §541.604?
Unfortunately, this case does not tee up that issue in the
way we hoped. With the benefit of briefing and argument,
it has become clear that the “critical question here” is not
how §541.601 and §541.604 interact. Ante, at 7. Instead,
the critical question is an antecedent one—whether Helix
Energy paid Michael Hewitt, the supervisor at issue in this
case, “on a salary basis” under §541.602. As the Court ex-
plains, the proper interaction between §541.601 and
§541.604 matters only if Helix Energy paid Mr. Hewitt on
a salary basis consistent with the terms of §541.602. Ante,
at 7. Faced with this development, the Court chooses to
2 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
GORSUCH, J., dissenting
take up the question whether Mr. Hewitt was paid on a sal-
ary basis under §541.602 and holds he was not. Ante, at 8.
Respectfully, I would dismiss this case as improvidently
granted. After successfully petitioning the Court to decide
how §541.601 relates to §541.604, Helix Energy assured us
that “the flaw in the decision below has nothing to do with
the salary-basis test” in §541.602. Brief for Petitioners 27.
I might excuse that disclaimer as a mere rhetorical flourish
if Helix Energy’s briefing nonetheless “made clear” the “im-
portance” of §541.602 to this case. Ante, at 8, n. 3. But it
did not. The company devoted only about two pages to the
issue in its opening brief. Brief for Petitioners 25–27. On
reply, Helix Energy went so far as to criticize Mr. Hewitt
for trying to “change the subject” from how §541.601 and
§541.604 interact to whether §541.602 is satisfied. Reply
Brief for Petitioners 3. In these circumstances, I would not
reach out to address the operation of §541.602—a question
we never granted certiorari to decide, one on which we have
received little briefing, and one Helix Energy even assured
us we need not decide.
Another reason counsels hesitation, too. Helix Energy
does not just dispute the proper application of various reg-
ulations. It contends those regulations are inconsistent
with and unsustainable under the terms of the statute on
which they are purportedly based. While §541.601,
§541.602, and §541.604 focus on an employee’s salary, Helix
Energy submits, the statute requires attention to the em-
ployee’s duties. See Tr. of Oral Arg. 32–38, 46–47; Brief for
Petitioners 41–44; Reply Brief for Petitioners 20–24; see
generally 29 U. S. C. §213(a)(1). Understandably, the
Court refuses to entertain this larger statutory argument
because Helix Energy failed to raise it earlier in the litiga-
tion. Ante, at 7, n. 2. But the fact that Helix Energy for-
feited such a foundational argument seems to me all the
more reason to leave any question about §541.602 to an-
other day.
Cite as: 598 U. S. ____ (2023) 1
KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–984
_________________
HELIX ENERGY SOLUTIONS GROUP, INC., ET AL.,
PETITIONERS v. MICHAEL J. HEWITT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 22, 2023]
JUSTICE KAVANAUGH, with whom JUSTICE ALITO joins,
dissenting.
Michael Hewitt earned about $200,000 per year as a
supervisor for Helix, a firm that provides services on
offshore oil rigs. After being fired, Hewitt sued Helix under
the Fair Labor Standards Act and sought hundreds of
thousands of dollars in retroactive overtime pay. The Court
today rules for Hewitt. I respectfully dissent. Unlike the
Court, I would hold that Hewitt was a “bona fide executive”
for Helix and therefore not entitled to overtime pay.
Under the Fair Labor Standards Act, many American
workers are legally entitled to overtime pay when they
work more than 40 hours per week. But the Act contains
several exceptions, including an exception for employees
who work in a “bona fide executive . . . capacity.” 29 U. S. C.
§213(a)(1). To determine whether an employee works in a
bona fide executive capacity, the Department of Labor’s
implementing regulations look to, among other things,
(i) the employee’s duties, (ii) how much the employee is
paid, and (iii) how the employee is paid—for example, by
salary, wage, commission, or bonus.
Under the regulations, an employee who performs
executive duties and earns at least $100,000 per year with
a “predetermined” weekly salary of at least $455 for any
week that he works is a bona fide executive and not entitled
2 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
KAVANAUGH, J., dissenting
to overtime pay. 29 CFR §§541.601, 541.602 (2015).
Per those regulations, Hewitt readily qualified as a bona
fide executive. As everyone agrees, Hewitt performed
executive duties, earned about $200,000 per year, and
received a predetermined salary of at least $963 per week
for any week that he worked.
Despite all that, the Court holds that Hewitt was not a
bona fide executive and therefore was entitled to overtime
pay under the regulations. The Court relies on two
alternative rationales.
First, the Court reasons that Hewitt’s pay was calculated
on a daily-rate basis, while §602 of the regulations requires
a certain minimum “predetermined amount” calculated on
a weekly or less frequent basis—specifically at least $455
per week. That is known as the salary-basis test. But
Hewitt’s daily “predetermined” rate ($963 per day) was
higher than the weekly minimum requirement of $455 per
week specified in the regulations. If a worker is guaranteed
at least $455 for any day that he works, that worker by
definition is guaranteed at least $455 for any week that he
works. As Helix rightly explains, a supervisor whose “pay
is calculated based on a day rate above the weekly
minimum receives more than enough on a salary basis to
satisfy” the regulation. Reply Brief 7.
To be sure, if Hewitt worked multiple days in a week,
then his $963 guaranteed weekly salary would only be part
of his total weekly compensation. But under the salary-
basis test specified in the regulations, an employee’s
guaranteed weekly salary of at least $455 need only
constitute “all or part” of his total weekly compensation.
§541.602(a) (emphasis added).
The Court’s opinion never satisfactorily accounts for
§602’s use of the phrase “or part.” Stated simply, the
regulations require only that an employee be guaranteed a
“predetermined amount” of at least $455 per week as “part”
of his total compensation for any week that he works. Ibid.
Cite as: 598 U. S. ____ (2023) 3
KAVANAUGH, J., dissenting
Hewitt was guaranteed a “predetermined amount” of at
least $455 per week (in fact, $963 per week) as part of his
total compensation for any week that he worked. And that
predetermined minimum amount of $963 was “not subject
to reduction because of variations in the quality or quantity
of the work performed.” Ibid. Hewitt always received at
least $963 per week that he worked.
Of course, this case would be different if Hewitt had been
guaranteed, say, only $250 per day that he worked. Under
those circumstances, Hewitt would not have been
guaranteed at least $455 for any week that he worked. But
here, Hewitt was guaranteed $963 for any day that he
worked. Therefore, he was guaranteed at least $963 for any
week that he worked.
The Court’s contrary conclusion boils down to the head-
scratching assertion that Hewitt was somehow not
guaranteed to receive at least $455 for any week that he
worked even though (as all agree) he was in fact guaranteed
to receive $963 for any day that he worked.
Second, and alternatively, the Court relies on a separate
section of the regulations—§604—that applies to executives
who (unlike Hewitt) make less than $100,000 per year.
Under the overtime-pay regulations, as I have noted,
executives who earn at least $100,000 per year and who are
guaranteed a salary of at least $455 per week that they
work are not entitled to overtime pay. §541.601. Under
§604, some executives who make less than $100,000 per
year are likewise not entitled to overtime pay if they are
guaranteed at least $455 per week that they work and at
least two-thirds of their total compensation comes in the
form of a weekly guarantee. See §541.100; §541.604; Dept.
of Labor, Wage and Hour Div., Opinion Letter (FLSA 2018–
25, 2018).
Because Hewitt earned more than $100,000 per year and
qualified as a highly compensated employee, the two-thirds
requirement of §604 did not apply to him. The Court’s
4 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT
KAVANAUGH, J., dissenting
opinion nonetheless suggests that the two-thirds
requirement may apply even to executives such as Hewitt
who earn more than $100,000 per year. That is incorrect.
To begin with, the introductory statement to the overtime
regulations indicates that the two-thirds requirement does
not apply to “highly compensated employees”—that is,
those like Hewitt who earn at least $100,000 per year. See
§541.0. Moreover, the regulation for highly compensated
employees (§601) does not refer to or incorporate §604,
which contains the two-thirds requirement, whereas §601
now does refer to other provisions of the regulations. 29
CFR §541.601(b)(1) (2020). In addition, the regulation for
highly compensated employees (§601) expressly authorizes
an employer to make a catch-up payment to an employee
near a year’s end in order to push the employee over the
$100,000 per year threshold. That regulation
simultaneously makes clear that, for such a highly
compensated employee, only about $25,000 of his
compensation needs to be guaranteed in weekly salary.
That express authorization for significant catch-up
payments directly contravenes any suggestion that highly
compensated employees who earn at least $100,000 per
year are subject to the two-thirds requirement. In short,
§604’s two-thirds requirement did not apply to Hewitt, who
earned about $200,000 per year.
To sum up, neither of the Court’s two rationales holds up
in light of the text of the regulations and the undisputed
terms of Hewitt’s pay. Because Hewitt performed executive
duties, earned at least $100,000 per year, and received a
guaranteed weekly salary of at least $455 for any week that
he worked, I would hold that Hewitt was not legally entitled
to overtime pay under the regulations.
One last point: Although the Court holds that Hewitt is
entitled to overtime pay under the regulations, the
regulations themselves may be inconsistent with the Fair
Labor Standards Act. See, e.g., Brief for State of
Cite as: 598 U. S. ____ (2023) 5
KAVANAUGH, J., dissenting
Mississippi et al. as Amici Curiae 7–10; Ante, at 1–2
(GORSUCH, J., dissenting). Recall that the Act provides that
employees who work in a “bona fide executive . . . capacity”
are not entitled to overtime pay. 29 U. S. C. §213(a)(1). The
Act focuses on whether the employee performs executive
duties, not how much an employee is paid or how an
employee is paid. So it is questionable whether the
Department’s regulations—which look not only at an
employee’s duties but also at how much an employee is paid
and how an employee is paid—will survive if and when the
regulations are challenged as inconsistent with the Act. It
is especially dubious for the regulations to focus on how an
employee is paid (for example, by salary, wage, commission,
or bonus) to determine whether the employee is a bona fide
executive. An executive employee’s duties (and perhaps his
total compensation) may be relevant to assessing whether
the employee is a bona fide executive. But I am hard-
pressed to understand why it would matter for assessing
executive status whether an employee is paid by salary,
wage, commission, bonus, or some combination thereof. In
any event, I would leave it to the Fifth Circuit on remand
to determine whether Helix forfeited the statutory issue.
But whether in Hewitt’s case on remand or in another case,
the statutory question remains open for future resolution in
the lower courts and perhaps ultimately in this Court.
I respectfully dissent.