Supreme Court Affirms 5th Circuit - Highly Compensated Offshore Toolpusher Entitled to Overtime Pay
Helix Energy Sols. Grp., Inc. v. Hewitt, 2023 U.S. LEXIS 944 *, 2023 WL 2144441 (Feb. 22, 2023)
The U.S. Supreme Court issued its highly anticipated opinion regarding the Fair Labor Standards Act’s (FLSA) regulations regarding overtime pay for “highly compensated employees” on Wednesday, February 22, 2023. The opinion by Justice Kagan (joined by Roberts, C.J., Thomas, Sotomayor, Barrett and Jackson) affirmed the en banc Fifth Circuit which held that the employee, a toolpusher who worked offshore earning in excess of $200,00, was entitled to overtime pay as his compensation did not meet the criteria of the Department of Labor’s regulations. Justice Gorsuch dissented maintaining that the writ of certiorari was improvidently granted. Justice Kavanaugh joined in that but also filed a dissenting opinion with which Justice Alito joined.
The opinion lays a course through the complex regulations promulgated by the U.S. Department of Labor pursuant to the FLSA. The employer’s pay structure was such that the employee was paid by the day and was not a salary-based employee regardless of the amount of money he earned. Accordingly, he is not exempt from the overtime provisions of the FLSA.[1]
In his dissent, Justice Gorsuch stated that the employer also maintained that the regulations “are inconsistent with and unsustainable under the terms of the statute on which they are purportedly based.”[2] However, Helix failed to assert this earlier and “forfeited such a foundational argument…”[3]Similarly, Justice Kavanaugh pointed out that the amicus brief of the State of Mississippi raised the issue that the regulations are inconsistent with the Act[4] and questions whether they will survive a frontal challenge.[5] Whether the argument has been waived is an issue for the Fifth Circuit to address.[6]
