Page:Helix Energy Solutions Group, Inc. v. Hewitt.pdf/23

Rh 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 annually—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 employees 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 duties 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 Curiae; Brief for Massachusetts Nurses Association as Amicus Curiae. Some nurses working on a per-day or per-shift basis 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 difficult, if not impossible, to reconcile with the FLSA’s design.

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