Helix Energy Solutions Group, Inc. v. Hewitt

P R E L I M I N A R Y P R I N T
Volume 598 U. S. Part 1
Pages 39–68
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February 22, 2023
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39
Syllabus
HELIX ENERGY SOLUTIONS GROUP, INC., et al. v.
HEWITT
certiorari
to the united states court of appeals for
the fth circuit
No. 21–984. Argued October 12, 2022—Decided February 22, 2023
Respondent Michael Hewitt fled 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 qualifed as “a bona fde executive.”
29 U. S. C. § 213(a)(1). Under applicable regulations, an employee is
considered a bona fde 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 fxed sal-
ary that does not vary with the amount of time worked; (2) the “salary
level” test, which requires that preset salary to exceed a specifed
amount; and (3) the job “duties” test. See 84 Fed. Reg. 51230. The
Secretary of Labor has implemented the bona fde executive standard
through two separate and slightly different rules, one “general rule”
applying to employees making less than $100,000 in annual compensa-
tion, 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 execu-
tives 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 fre (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 execu-
tive 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

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40 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Syllabus
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 frst concluded that a daily-rate
employee (like Hewitt) does not fall within the main salary-basis provi-
sion 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 reduc-
tion because of variations in the quality or quantity of the work per-
formed. 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, al-
though highly paid, was not exempt from the FLSA. Reaching the
opposite conclusion, a dissenting opinion determined that Hewitt's com-
pensation satisfed 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. 49–62.
(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 com-
pensation did not satisfy § 604(b)'s conditions. And the Court concludes
that Helix did not pay Hewitt on a salary basis as defned in § 602(a), a
conclusion that follows from the text and the structure of the regula-
tions. Pp. 49–58.
(1) The text of § 602(a) excludes daily-rate workers. An employee,
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

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as: 598 U. S. 39 (2023)
41
Syllabus
because” the employee worked less than the full week. Giving lan-
g
uage its ordinary meaning, nothing in that description fts a daily-rate
worker, who by defnition 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 mat-
ter of common parlance,” to “the stability and security of a regu-
lar 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 inter-
pretation 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 refect the standard meaning of a
“salary,” which connotes a steady and predictable stream of pay.
Pp. 50–54.
(2) The broader regulatory structure—in particular, the role of
§ 604(b)—confrms 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 ap-
proxi mati ng what the employee usua l ly ear ns. Sec ti on 604( b)
thus speaks directly to when daily and hourly rates are “[ ]consis-
tent 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
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
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42 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Syllabus
wrong that the HCE rule operates independently of § 604(b). The HCE
r
ule 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 fexible
in the HCE rule. Pp. 55–58.
(b) The Court's reading of the relevant regulations properly concludes
this case. Helix urges the Court to consider supposed policy conse-
quences 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 refects 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 pre-
clude employers from paying workers neither a true salary nor over-
time. 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. 59–61.
15 F. 4th 289, affrmed.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Sotomayor, Barrett, and Jackson, JJ., joined. Gorsuch,
J., fled a dissenting opinion, post, p. 62. Kavanaugh, J., fled a dissenting
opinion, in which Alito, J., joined, post, p. 63.
Paul D. Clement argued the cause for petitioners. With
him on the briefs were Andrew C. Lawrence, George W.
Hicks, Jr., Michael D. Lieberman, M. Carter Crow, Kather-
ine D. Mackillop, and Kimberly F. Cheeseman.
Edwin Sullivan argued the cause for respondent. With
him on the brief were Samuel C. Kaplan and Mark J. Oberti.
Anthony A. Yang argued the cause for the United States
as amicus curiae supporting respondent. With him on the

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as: 598 U. S. 39 (2023)
43
Opinion of the Court
brief were Solicitor General Prelogar and Deputy Solicitor
Gene
ral Kneedler.*
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 fde executive, administrative, or profes-
sional capacity,” as those “terms are defned” by agency reg-
ulations. 29 U. S. C. § 213(a)(1). Under the regulations, an
employee falls within the “bona fde 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 ap-
plied 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
*Briefs of amici curiae urging reversal were fled for the State of Mis-
sissippi et al. by Lynn Fitch, Attorney General of Mississippi, Whitney H.
Lipscomb, Deputy Attorney General, Scott G. Stewart, Solicitor General,
and Justin L. Matheny and John V. Coghlan, Deputy Solicitors General,
and by the Attorneys General for their respective States as follows: Steve
Marshall of Alabama, Jeff Landry of Louisiana, Austin Knudsen of Mon-
tana, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; for
the Chamber of Commerce of the United States of America by Pratik A.
Shah and Jennifer B. Dickey; for the Independent Petroleum Association
of America by Samuel Zurik III and Robert P. Lombardi; and for the
Texas Oil & Gas Association, Inc., et al. by David B. Jordan, Kelcy L.
Palmer, and Paige A. Cantrell.
Briefs of amici curiae urging affrmance were fled for the American
Federation of Labor and Congress of Industrial Organizations by Harold
C. Becker, Matthew J. Ginsburg, and Andrew Lyubarsky; for the Massa-
chusetts Nurses Association by Nicholas D. Wanger; and for National
Nurses United by John R. Mooney, Carol A. Igoe, and Imhotep A. Royster.
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44 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
an employee is not paid on a salary basis, and thus is entitled
to
overtime pay.
I
A
Congress enacted the FLSA to eliminate both “substan-
dard 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 guar-
anteeing a minimum wage. See 29 U. S. C. § 206. It ad-
dresses the latter by requiring time-and-a-half pay for work
over 40 hours a week—even for workers whose regular com-
pensation 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 “com-
pensate [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
benefts 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 work-
ers from its protections, including the overtime-pay guaran-
tee. The statutory exemption relevant here applies to “any
employee employed in a bona fde executive, administrative,
or professional capacity . . . (as such terms are defned and
delimited from time to time by regulations of the Secretary
[of Labor]).” § 213(a)(1). Under that provision, the Secre-
tary sets out a standard for determining when an employee
is a “bona fde executive.” If that standard is met, the em-
ployee has no right to overtime wages.
From as early as 1940, the Secretary's “bona fde execu-
tive” standard has comprised three distinct parts. See 84
Fed. Reg. 51230 (2019) (summarizing the standard's history).
The frst is the “salary basis” test—the subject matter of
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as: 598 U. S. 39 (2023)
45
Opinion of the Court
this case. Ibid. The basic idea for now (greater detail and
disput
ation will follow) is that an employee can be a bona
fde executive only if he receives a “predetermined and fxed
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 spec-
ifed amount. Ibid. And the third is the “duties” test,
which focuses on the nature of the employee's job responsi-
bilities. Ibid. When all three criteria are met, the em-
ployee (because considered a bona fde executive) is excluded
from the FLSA's protections.
Now, though, add a layer of complexity to that description:
The Secretary has implemented the bona fde 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 com-
pensation,” 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 enter-
prise, directing other employees, and exercising power to
hire and fre (duties test). § 541.100(a). A different rule—
the one applicable here—addresses employees making at
least $100,000 per year (agai n, i ncludi ng a l l for ms 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.
1
All 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.
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46 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
§ 541.601(a); see 69 Fed. Reg. 22174 (2004) (explaining that
the
HCE rule uses a “more fexible 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 em-
ployee 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
sa lary-basis prov isi on, set out i n 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 predeter-
mined 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 ex-
empt employee must receive the full salary for any week
in which the employee performs any work without re-
gard 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 fde execu-
tive. 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 sec-
tion states that an employer may base an employee's pay on
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as: 598 U. S. 39 (2023)
47
Opinion of the Court
an hourly, daily, or shift rate without “violating the salary
basis
requirement” or “losing the [bona fde executive] ex-
emption” so long as two conditions are met. First, the em-
ployer 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 spe-
cifcally, 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 em-
ployer 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 “[ ]con-
sistent 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 super-
vised 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, is-
sued 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 com-
pensation scheme, Helix paid Hewitt over $200,000 annually.
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48 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
Hewitt fled this action under the FLSA to recover over-
ti
me pay. Helix asserted in response that Hewitt was ex-
empt from the FLSA because he qualifed as a bona fde ex-
ecutive. 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 judg-
ment. 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 pro-
tections. See 15 F. 4th 289 (2021). The 12-judge majority
frst held that a daily-rate employee (like Hewitt) does not
fall within § 602(a) of the Secretary's regulations. That sec-
tion, the court reasoned, covers only employees whose “com-
pensation [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 condi-
tions; 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 “satis-
fed 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 cer ti orar i, 596 U. S. ––– (2022), and now
affrm.
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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 fde 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 45–46.
2
In denying ex-
ecutive status, Hewitt puts all his chips on that standard's
frst 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 46–47. 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 re-
lationship” to the weekly amount he usually earned. See
Brief for Petitioners 28; supra, at 47–48. So again, every-
thing turns on whether Helix paid Hewitt on a salary basis
as described in § 602(a). If yes, Hewitt was exempt from
2
At argument in this Court, Helix suggested that the salary-basis com-
ponent of the regulations is an impermissible extrapolation from the statu-
tory exemption for workers “employed in a bona fde executive . . . capac-
ity.” 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 Tech-
nologies, Inc. v. United States, 579 U. S. 162, 173 (2016); see post, at 63
(Gorsuch, J., dissenting) (agreeing that Helix “failed to raise” the argu-
ment, and also declining to express a view of its merits); but cf. post, at
67–68 (Kavanaugh, J., dissenting) (recognizing that the argument may be
forfeited, but opining on it anyway).
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50 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
the FLSA and not entitled to overtime pay; if no, he was
covered
under the statute and can claim that extra money.
The answer is no: Helix did not pay Hewitt on a salary
basis as defned 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 con-
clusions follow from both the text and the structure of the
regulations. And Helix's various policy claims cannot jus-
tify 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
3
We 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 62–63. But both parties' merits briefng
made clear the importance of an antecedent question: whether Hewitt's
pay scheme in fact satisfed 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 salary-basis compo-
nent. So a pay scheme meeting § 602(a) and the HCE rule's other require-
ments does not also have to meet § 604(b) to make a worker exempt. See
in fra, at 55–56.

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paid on a salary basis if but only if he “receive[s] the full
sa
lary 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 fts a daily-rate
worker, who by defnition 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 usu-
ally 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 pre-
cisely 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 calcu-
lated 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 fxed 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 “fxed compensation regularly paid, as
by the year, quarter, month, or week.” Webster's New In-
ternational 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.”

52 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
Webster's New International Dictionary, at 2203, 2863. As
the
Court of Appeals put the point, the “concept of `salary' ”
is linked, “[a]s a matter of common parlance,” to “the stabil-
ity and security of a regular weekly, monthly, or annual pay
structure.” 15 F. 4th, at 291. Take away that kind of pay-
check 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 re-
gardless of the number of days worked—the salary-basis test
just refects 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 frst glance (and actually, see below,
on second too), that language just confrms everything al-
ready 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 fre-
quent measure, as it was for Hewitt. See Webster's New
International Dictionary, at 225, 227 (defning “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 fxed
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 ex-
ceeding $455 (the salary level) for any week he had worked
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at all, Helix concludes that Hewitt was paid, under § 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 bill-
able rate, not delivery of a paycheck every hour. Or con-
sider 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 regula-
tions 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., fat sum, bonus payment [or] straight-time hourly
amount).” § 541.604(a). Another provision defnes what it
4
Helix offers no sensible reason—actually no reason at all—for hinging
satisfaction of the salary-basis test on how often paychecks are distrib-
uted. And we cannot think of any. But we need not further stretch our
powers of imagination for, as we next explain, we cannot fnd such a pay-
check-timing notion in the rule's text.

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ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
means to be “paid on a `fee basis,' ” differentiating 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 com-
pensation 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 lan-
guage 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, fxed
amount “on a weekly[ ] or less frequent basis” means that his
paycheck refects 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 be-
cause 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—refects the standard mean-
ing 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
5
The dissent, unlike Helix, tries just to power past the regulatory text.
See post, at 64–67 (opinion of Kavanaugh, J.). The dissent reasons that
because Hewitt received more than $455 for a day's work, he must have

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B
The
broader regulatory structure—in particular, the role
of § 604(b)—confrms 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 re-
quirement. See supra, at 46–47. And that second route is
all about daily, hourly, or shift rates. Whereas § 602(a) ad-
dresses 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 sal-
ary basis requirement” so long as an employer “also” pro-
been paid on a salary basis. See ibid. That is a non-sequitur to end all
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 re-
ceives 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 addition-
ally 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, confrms all we
have said about § 602(a)'s meaning. We do not know why the dissent calls
that analysis an “alternative rationale.” Post, at 64. It is simply a struc-
tural argument in support of a more narrowly focused textual one. Here,
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ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
vides a guarantee of weekly payment approximating what
the
employee usually earns. See supra, at 46–47. 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 47. 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 tan-
dem 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 66—
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 three-part
standard for bona fde executive status. See supra, at
45–46. 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 re-
quirements 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 anoma-
lous 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 be-

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tween the HCE rule and § 604(b). That is so for two rea-
sons.
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 50–54.
And Helix of course acknowledges that it must comply with
§ 602(a) to satisfy the HCE rule's salary-basis requirement.
See supra, at 49. Second, even on Helix's view of the HCE
rule, § 604(b) in fact confrms the plain-text, weekly-rate-only
reading of § 602(a). Helix, after all, agrees that both provi-
sions serve as pathways to meeting the salary-basis test
when the general rule (for lower-income workers) is in-
volved. See supra, at 56. And if in that context (as just
shown) § 604(b) confrms 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 con-
text. 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) (requir-
ing “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 re-
quirement—explaining when a person is indeed paid on a
salary basis—are § 602(a) and § 604(b). See supra, at 46–47,
55. So both those provisions should apply to both the gen-
eral and the HCE rule—because both the former serve to
defne 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,

58 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, He-
lix'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 gen-
eral rules; it just has nothing to do with the salary-basis
requirement. As Helix notes, the HCE rule is “stream-
lined” 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 re-
spect to workplace duties. As noted above, lower-income
employees cannot qualify as bona fde executives unless (1)
their primary job is management; (2) they regularly direct
the work of others; and (3) they have authority to hire and
fre. See § 541.100(a); supra, at 45. But higher-income em-
ployees need “regularly perform[ ]” only “one” of those “re-
sponsibilities” to so qualify. § 541.601(a). That “more fex-
ible 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 in-
corporates § 604(b) as well as § 602(a). And § 604(b)'s focus
on daily and hourly workers confrms that § 602(a)—as its
own text shows—pertains only to employees paid by the
week (or longer). Hewitt was not.
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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 “far-
reaching ” 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, dis-
rupt and “increase costs” of industry operations, and “im-
pos[e] signifcant 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 Coun-
cil of Baltimore, 593 U. S. –––, ––– (2021) (internal quotation
marks omitted). And anyway, Helix's appeal to conse-
quences appears something less than formidable in the con-
text 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 earn-
ers fails in view of what this Court has observed about the
FLSA: Workers are not “deprived of the benefts of the Act
simply because they are well paid.” Jewell Ridge, 325 U. S.,
at 167 (explaining that the FLSA's breadth fts its aims of
deterring overwork and “spread[ing] employment”); see
supra, at 44. The Secretary of Labor has often reiterated
that point, recognizing since the FLSA's enactment that
Congress elected not to exempt all well-compensated work-
ers. 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 over-
time 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
(because they are “bona fde executive[s]”); but so too, it es-
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60 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Opinion of the Court
tablishes 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 pro-
vision of the HCE rule states, for example, that various
workers in “maintenance, construction and similar occupa-
tions” are never exempt as executives, “no matter how
highly paid they might be.” § 541.601(d). Throughout, the
HCE rule refects 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 satisfes § 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 retro-
active liability could have force. See Christopher v. Smith-
Kline 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 44–45, 51. 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.

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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 em-
ployees as bona fde executives. See supra, at 45–46, 56.
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 pro-
tections. 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 rep-
resenting nurses have fled amicus briefs here, and it is easy
to see why. See Brief for National Nurses United as Ami-
cus 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 diff-
cult, 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 Hew-

62 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Gorsuch, J., dissenting
itt's compensation did not meet § 604(b)'s conditions, it could
not
count as a salary. So Hewitt was not exempt from the
FLSA; instead, he was eligible under that statute for over-
time pay. We accordingly affrm the judgment below.
It is so ordered.
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 deter-
mining whether highly compensated supervisors are exempt
from the [Fair Labor Standards Act]'s overtime-pay require-
ments.” Pet. for Cert. i–ii. In other words, we agreed to
decide which regulations certain well-paid employees must
satisfy to ft 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 beneft of briefng and argument,
it has become clear that the “critical question here” is not
how § 541.601 and § 541.604 interact. Ante, at 49. 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 ex-
plains, 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 49–50.
Faced with this development, the Court chooses to take up
the question whether Mr. Hewitt was paid on a salary basis
under § 541.602 and holds he was not. Ante, at 50.
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 faw in the decision below has nothing to do with
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Kavanaugh, J., dissenting
the salary-basis test” in § 541.602. Brief for Petitioners 27.
I
might excuse that disclaimer as a mere rhetorical fourish
if Helix Energy's briefng nonetheless “made clear” the “im-
portance” of § 541.602 to this case. Ante, at 50, 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 satisfed. 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 briefng, 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 regu-
lations. 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 sub-
mits, 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 49, n. 2. But
the fact that Helix Energy forfeited such a foundational ar-
gument seems to me all the more reason to leave any ques-
tion about § 541.602 to another day.
Justice Kavanaugh, with whom Justice Alito joins,
dissenting.
Michael Hewitt earned about $200,000 per year as a su-
pervisor for Helix, a frm that provides services on offshore
oil rigs. After being fred, Hewitt sued Helix under the Fair
Labor Standards Act and sought hundreds of thousands of
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64 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Kavanaugh, J., dissenting
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 fde 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
i n a “ bona fide executive . . . capacity. ” 29 U. S. C.
§ 213(a)(1). To determine whether an employee works in a
bona fde executive capacity, the Department of Labor's im-
plementing 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 execu-
tive duties and earns at least $100,000 per year with a “pre-
determined” weekly salary of at least $455 for any week that
he works is a bona fde executive and not entitled to overtime
pay. 29 CFR §§ 541.601, 541.602 (2015).
Per those regulations, Hewitt readily qualifed as a bona
fde executive. As everyone agrees, Hewitt performed ex-
ecutive 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 fde executive and therefore was entitled to overtime
pay under the regulations. The Court relies on two alterna-
tive 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—specifcally 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 specifed

Cite
as: 598 U. S. 39 (2023)
65
Kavanaugh, J., dissenting
in the regulations. If a worker is guaranteed at least $455
for
any day that he works, that worker by defnition is guar-
anteed 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 specifed 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) (empha-
sis 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 “prede-
termined amount” of at least $455 per week as “part” of
his total compensation for any week that he works. Ibid.
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 pre-
determined 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 guaran-
teed 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 guaran-
teed to receive at least $455 for any week that he worked
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66 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Kavanaugh, J., dissenting
even though (as all agree) he was in fact guaranteed to re-
ceive
$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, exec-
utives who earn at least $100,000 per year and who are guar-
anteed 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 guaran-
tee. 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
qualifed as a highly compensated employee, the two-thirds
requirement of § 604 did not apply to him. The Court's opin-
ion 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 indi-
cates 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. More-
over, 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.
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as: 598 U. S. 39 (2023)
67
Kavanaugh, J., dissenting
That express authorization for signifcant catch-up payments
direc
tly 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 execu-
tive 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 regula-
tions themselves may be inconsistent with the Fair Labor
Standards Act. See, e. g., Brief for State of Mississippi et al.
as Amici Curiae 7–10; Ante, at 62–63 (Gorsuch, J., dissent-
ing). Recall that the Act provides that employees who work
in a “bona fde 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 fde executive. An executive em-
ployee's duties (and perhaps his total compensation) may be
relevant to assessing whether the employee is a bona fde
executive. But I am hard-pressed to understand why it
would matter for assessing executive status whether an em-
ployee is paid by salary, wage, commission, bonus, or some

68 HELIX
ENERGY SOLUTIONS GROUP, INC. v. HEWITT
Kavanaugh, J., dissenting
combination thereof. In any event, I would leave it to the
Fi
fth Circuit on remand to determine whether Helix for-
feited 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.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None