(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, petitioner 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 compensation scheme, Hewitt earned over $200,000 annually. Helix asserts that Hewitt was exempt from the FLSA because he qualified as 

“a bona fide executive.” 29 U. S. C. §213(a)(1). Under applicable regulations, 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 salary 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 considers 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 overtime pay guarantee turns solely on whether Hewitt was paid on a salary 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, deciding that Hewitt was not paid on a salary basis and therefore could 

claim the FLSA’s protections. The court so held based on its examination 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 reduction 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 performs 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, although highly paid, was not exempt from the FLSA. Reaching the opposite conclusion, a dissenting opinion determined that Hewitt’s compensation 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 compensation 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 regulations. 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 regard 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 language its ordinary meaning, nothing in that description fits a dailyrate worker, who by definition is paid for each day he works and no 

others. Further, §602(a)’s demand that an employee receive a predetermined 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 regular weekly, monthly, or annual pay structure.” 15 F. 4th 289, 291. 

Helix responds by focusing on §602(a)’s use of the word “received,” contending 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 regulations 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 “salary,” 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 approximating what the employee usually earns. Section 604(b) thus speaks

directly to when daily and hourly rates are “[ ]consistent with the salary basis concept.” 69 Fed. Reg. 22184. Reading §602(a) also to cover

daily- and hourly-rate employees would subvert §604(b)’s strict conditions 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) (requiring “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 requirement. 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 concludes this case. Helix urges the Court to consider supposed policy

consequences of that reading, but even the most formidable policy arguments 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 Congress’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, Washington, 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 professional 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” exemption 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 requirement, as applied to both lower-income and higher-income 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 entitled to overtime pay. 
 

 

2 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT 

Opinion of the Court 

I 

A 

Congress enacted the FLSA to eliminate both “substandard 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 guaranteeing a minimum wage. See 29 U. S. C. §206. It addresses the latter by requiring time-and-a-half pay for work 

over 40 hours a week—even for workers whose regular compensation 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 “compensate [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 workers from its protections, including the overtime-pay guarantee. The statutory exemption relevant here applies to

“any employee employed in a bona fide executive, administrative, or professional capacity . . . (as such terms are defined 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 executive” standard has comprised three distinct parts. See 84 

Fed. Reg. 51230 (2019) (summarizing the standard’s history). The first is the “salary basis” test—the subject matter 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 exceeds a specified amount. Ibid. And the third is the “duties” 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 excluded from the FLSA’s protections.

Now, though, add a layer of complexity to that description: The Secretary has implemented the bona fide executive 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 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—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—addresses 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 perform[]” 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 

—————— 1All 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 salary-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 predetermined 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 exempt employee must receive the full salary for any

week in which the employee performs any work without 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 section 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] exemption” so long as two conditions are met. First, the employer 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 relationship” to the “amount actually earned” in a typical week—

more specifically, must be “roughly equivalent to the employee’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 (explaining 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 “toolpusher” 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 invariably, 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 compensation scheme, Helix paid Hewitt over $200,000 annually. 
 

6 HELIX ENERGY SOLUTIONS GROUP, INC. v. HEWITT 

Opinion of the Court 

Hewitt filed this action under the FLSA to recover overtime pay. Helix asserted in response that Hewitt was exempt from the FLSA because he qualified as a bona fide executive. 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 judgment. 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 majority 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 basis,’ ‘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 opinions. 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 affirm. 
 

 

 

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 executive 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. 

—————— 2At argument in this Court, Helix suggested that the salary-basis component 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 practice, 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 argument, 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 satisfy). 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 

—————— 3We 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 improvidently 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 reveals 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 salarybasis 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 without 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 ordinary 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 International 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 stability 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, because they do not receive a preset weekly salary regardless 

of the number of days worked—the salary-basis test just reflects 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 already 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 frequent 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 contends that the single word “receives” converts §602(a)’s focus: 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—irrespective 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 consider 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 regulations 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 

—————— 4Helix offers no sensible reason—actually no reason at all—for hinging 

satisfaction of the salary-basis test on how often paychecks are distributed. 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 regulations use the language of “basis” in a similar vein—to describe 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 because 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 standard meaning of a “salary,” which connotes a steady and predictable 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 

—————— 5The 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)—enabling a compensation scheme to meet the salary-basis requirement. See supra, at 4–5. And that second route is all 

about daily, hourly, or shift rates. Whereas §602(a) addresses 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 salary basis requirement” so long as an employer “also” provides a guarantee of weekly payment approximating what 

—————— 

non-sequiturs. Hewitt’s high daily pay ensured that the HCE rule’s salary-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 employee 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 additionally 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 conditions 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-overlapping 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 separately prescribe—in the “general rule” and the HCE rule—

how lower- and higher-income employees satisfy the threepart standard for bona fide executive status. See supra, at 

3–4. On Helix’s view, only the general rule (for lower-income 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 requirements 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 between 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 general rule (for lower-income workers) is involved. See supra, 

at 14. And if in that context (as just shown) §604(b) confirms 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 supposing 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 salary-basis (and salary-level) requirement in the same way 

that the general rule does. Compare §541.601(b)(1) (requiring “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 requirement—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 issue—which contains cross-references to neither provision,

so offers no basis for Helix’s distinction. And anyhow, Helix’s own arguments belie the import of the added cross-reference. 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-reference scheme in the later HCE rule. The upshot is that

§604(b) applies, just as §602(a) does, to the HCE and general rules alike. 

There is of course a difference between the HCE and general 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-income 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 employees 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 “responsibilities” 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 incorporates §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 “farreaching” 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, disrupt and “increase costs” of industry operations, and “impos[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) (internal quotation marks omitted). And anyway, Helix’s appeal to consequences appears something less than formidable 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 workers. 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 overtime requirements”). That statutory choice undergirds how

the HCE rule works. The rule spells out when higher-income 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 establishes 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 occupations” 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 described 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 decision 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 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. 

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 determining whether highly compensated supervisors are exempt 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 employees must satisfy to fit within the overtime-pay exemption. 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 explains, 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 salary 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 “importance” 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 regulations. 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 employee’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 litigation. Ante, at 7, n. 2. But the fact that Helix Energy forfeited such a foundational argument seems to me all the

more reason to leave any question about §541.602 to another 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 salarybasis 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 headscratching 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 hardpressed 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.