Page:Helix Energy Solutions Group, Inc. v. Hewitt.pdf/29

Rh 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