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Fifth Circuit Declares Day-Rate Workers, even Those Earning over $200K/Year, Not Exempt—Unless the Employer Also Pays a Weekly Guaranteed Amount

By: Dennis P. Duffy1

In an en banc decision that the dissent predicted will wreck needless and excessive suffering to the “oyl biddness,” the Fifth Circuit held that a day rate—even for employees earning over $200k a year—does not meet the salary basis test for exempt status under the Fair Labor Standards Act (“FLSA”), unless the employer also provides a minimum weekly guarantee that the employee must earn regardless of hours worked. Hewitt v. Helix Energy Solutions, No. 19-20023 (5th Cir. September 9, 2021) (en banc).  

Dennis P. Duffy