Page:Helix Energy Solutions Group, Inc. v. Hewitt.pdf/28

2 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.