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“Highly Compensated Employees” and Overtime Eligibility: Helix Energy Solutions Group, Inc. v. Hewitt

On February 22nd, 2023, the United States Supreme Court considered whether a supervisor earning at least $100,000 annually is eligible for retroactive overtime pay under the Fair Labor Standards Act (“FLSA”).  Ultimately, the Court held that an oil rig supervisor, making over $200,000 annually, is considered to be a “non-exempt” individual under the FLSA as his weekly paycheck was calculated using a daily rate.

Petitioner Helix employed Respondent Michael Hewitt as a “toolpusher.”  A toolpusher was stated to be supervisory and “largely administrative.”  Helix paid Hewitt bi-weekly at a daily rate of at least $963.00.  Following his termination from Helix, Hewitt filed a putative class action seeking retroactive overtime pay.  Hewitt contended that he could not be deemed ineligible for overtime pay under 29 CFR §541.604(b) because his income was calculated “daily” rather than based on salary.  Helix then argued that §541.604(b) was irrelevant because as “a bona fide executive, administrative, or professional capacity,” Hewitt was exempt under 29 CFR §541.601 as he was a “highly compensated employee,” despite Hewitt working 84 hours a week on the rigs.

To be considered “highly compensated,” an employee must earn at least $107,432.00 annually.  Additionally, to establish bona fide exempt executive status, a highly compensated employee must receive their earnings on a “salary basis” and regularly perform at least one of the following duties traditionally characteristic of an executive employee: (1) managing the enterprise, (2) directing other employees, or (3) exercising power to hire and fire.  “Salary basis” requires an employee to receive a predetermined amount for compensation that is not deducted due to variations in the quality or quantity of the work they have performed.  On the other hand, “daily basis” means the employee’s salary varies according to the number of days they have worked during the specific pay period.

Ultimately, in a 6-3 decision, the Court decided that even a “highly compensated” employee may still qualify as non-exempt under the FLSA if the employee’s paycheck is based solely on their daily pay rate, as opposed to a predetermined, fixed portion of their salary.  This decision sends a clear message to workers, if you are paid on a daily basis and work over forty hours per week, you are entitled to overtime, even if you are considered to be “highly compensated.”

While this case may seem irrelevant to the average American worker who is not making over $107,432 a year, this decision is equally relevant for other FLSA exemptions that rely on the “salary basis” test.

If you are a worker being paid on a daily basis, working over 40 hours per week, and are not receiving proper overtime pay, contact Borrelli & Associates, PLLC, to schedule a free consultation through one of our websites,,, or any of our phone numbers: (516) 248-5550, (516) ABOGADO, or (212) 679-5000.


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