                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 17a0287p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 TOM HUGHES and DESMOND MCDONALD, on behalf of              ┐
 themselves and others similarly situated,                  │
                                   Plaintiffs-Appellants,   │
                                                            >     No. 17-3112
                                                            │
        v.                                                  │
                                                            │
                                                            │
 GULF INTERSTATE FIELD SERVICES, INC.,                      │
                               Defendant-Appellee.          │
                                                            ┘

                          Appeal from the United States District Court
                         for the Southern District of Ohio at Columbus.
                No. 2:14-cv-00432—Edmund A. Sargus Jr., Chief District Judge.

                                     Argued: October 6, 2017

                              Decided and Filed: December 19, 2017

                   Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

                                        _________________

                                             COUNSEL

ARGUED: Richard J. Burch, BRUCKNER BURCH PLLC, Houston, Texas, for Appellants.
James J. Swartz, Jr., POLSINELLI PC, Atlanta, Georgia, for Appellee. ON BRIEF: James A.
Jones, BRUCKNER BURCH PLLC, Houston, Texas, Robert E. DeRose, Robi J. Baishnab,
BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP, for Appellants.
James J. Swartz, Jr., J. Stanton Hill, POLSINELLI PC, Atlanta, Georgia, Mark A. Knueve,
VORYS, SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellee.
 No. 17-3112              Hughes et al. v. Gulf Interstate Field Serv.                    Page 2


                                      _________________

                                           OPINION
                                      _________________

       KAREN NELSON MOORE, Circuit Judge. Tom Hughes and Desmond McDonald
served as welding inspectors for Gulf Interstate Field Services on a pipeline-construction project
in Ohio between 2013 and 2014. In 2014, they and others similarly situated brought suit under
the Fair Labor Standards Act (FLSA) and the comparable Ohio Minimum Fair Wage Standards
Act (OMFWSA), asserting that they were entitled to overtime pay for weeks in which they
worked more than forty hours. Gulf Interstate argued, and the district court ruled on summary
judgment, that Hughes, McDonald, and other employees like them were instead exempt from the
overtime requirements because they qualified as highly compensated employees under the
governing regulations.

       Though Hughes and McDonald concede that they were paid in a manner and at a rate
consistent with being exempt, they argue that those facts do not resolve the question under the
text of the regulations. Instead, they argue, it matters whether their salaries were guaranteed,
and in turn, whether a rational trier of fact could have concluded that there was no such
guarantee. Because such a guarantee does matter, and because there is a genuine issue of
material fact as to whether such a guarantee existed, we REVERSE the district court’s grant of
summary judgment to Gulf Interstate and remand for further proceedings.

                                      I. BACKGROUND

       Hughes and McDonald began working for Gulf Interstate as welding inspectors in
January and June 2013, respectively, on a pipeline project in Ohio for a Gulf Interstate client
called MarkWest. R. 31-1 (Hughes Decl.) (Page ID #151–52); R. 31-2 (McDonald Decl.) (Page
ID #155); see also R. 42-13 (Kramer Decl., Exs. BA–BB) (Page ID #600, 602). Prior to
beginning their work, they each received an offer letter from Gulf Interstate stating that they
were entitled to, in addition to a weekly per diem and computer stipend, a salary of
 No. 17-3112                   Hughes et al. v. Gulf Interstate Field Serv.                                Page 3


“$337.00/Day Worked.” R. 31-1 (Hughes Decl., Ex. 1) (Page ID #154).1 Rate sheets exchanged
between Gulf Interstate and MarkWest regarding the project also listed, among various “Cost
Components,” a “Daily Rate,” with a note appended clarifying that the “[d]ay rate” would be
“paid on days worked.” R. 93-2 (Sprick Dep., Ex. 3) (Page ID #3182).

        Correspondence between MarkWest and Gulf Interstate offers further discussion of the
arrangement. After Gulf Interstate’s director asked whether inspectors were “paid for DAYS
WORKED only (whether its [sic] 1, 2, 3, etc), or is there a 5, 6, or 7 day minimum ?”, a
MarkWest manager replied: “[Inspectors are p]aid for days worked only. This was explained to
all of the inspectors coming in. These projects are based on a 6 day work week @ 10 hours a
day (salaried position). As is the case anywhere any additional hours worked in a day is [sic] not
paid.” R. 93-2 (Sprick Dep., Ex. 12) (Page ID #3241).

        There is also evidence that welding inspectors were told orally that they would be
working “six days a week” and ten hours a day, an arrangement known by industry shorthand as
“six 10s.” R. 90-9 (Hughes Dep.) (Page ID #1637); see R. 42-2 (Hill Decl.) (Page ID #310) (“It
was my expectation . . . that . . . either one of my subordinates or I explained to each Plaintiff
that they would be paid a daily rate multiplied by six in each week . . . .”); see also 90-10
(McDonald Dep.) (Page ID #1750, 1752); R. 90-20 (Williamson Dep.) (Page ID #2684). And
Gulf Interstate’s Field Services Manager, Catherine Kramer, testified that inspectors were to be
paid for six days even if they worked five days, although she stated that this aspect of the
arrangement was “not explained” in the offer letters. R. 93-3 (Kramer Dep.) (Page ID #3253).2

        Over the course of their employment, Hughes and McDonald earned an annualized rate
of more than $100,000 per year. See R. 42-6 (Kramer Dep.) (Page ID #364) (attesting that
Hughes earned nearly $109,000 “for work performed in 2013” and that McDonald earned nearly


        1
          Although McDonald’s offer letter is not in the record, the record does indicate, per an email written by
Gulf Interstate’s Field Services Manager, Catherine Kramer, that “[e]veryone that [was] out there working would
have received the same letter.” R. 93-2 (Sprick Dep., Ex. 13) (Page ID #3243–44); R. 93-3 (Kramer Dep., Ex. 6)
(Page ID #3269).
        2
          Gulf Interstate has evidently since changed its rate sheets to note that “[i]nspectors are exempt employees
and will be paid for all days worked and guaranteed a minimum of five (5) days per week paid on a salary basis.”
See R. 93-2 (Sprick Dep., Ex. 6) (Page ID #3216).
 No. 17-3112                    Hughes et al. v. Gulf Interstate Field Serv.                           Page 4


$83,000 “for work performed from April 15, 2013 through December 31, 2013”). Along with
others similarly situated, they received pay for at least six days of ten-hour shifts per week, they
earned pay for holidays (some worked, some unworked), and McDonald (again, along with
others similarly situated3) received pay on days that he was out sick. See R. 42-6–42-13 (Kramer
Decl. & Exs. A–BJ) (Page ID #356–643).4 During the months that they worked, in other words,
there does not appear to have been a week during which Hughes and McDonald did not receive
pay consistent with a guarantee of a weekly salary equivalent to six days of work at ten hours per
day.5 See id.; see also R. 90-2 (Mot. for Decertification, App’x A) (Page ID #1063–1116).

        In May 2014, Hughes and McDonald brought suit on behalf of themselves and others
similarly situated under the FLSA, see 29 U.S.C. § 207, and the OMFWSA, see Ohio Rev. Code
§ 4111.03. R. 1 (Compl. ¶ 1) (Page ID #1). In January 2015, they moved to certify an FLSA
collective action and an OMFWSA class action under 29 U.S.C. § 216(b) and Federal Rule of
Civil Procedure 23, respectively. R. 30 (Pl. Mot. for Conditional and Class Certification) (Page
ID #112). In July 2015, the district court granted Hughes and McDonald’s motion for FLSA
conditional certification but denied their motion for OMFWSA class certification. R. 59 (Dist.
Ct. Certification Op. & Order at 1) (Page ID #764).

        In November 2015, Gulf Interstate moved for summary judgment, arguing that
“undisputed evidence establishes each element of the highly compensated employee exemption
to overtime pay under the Fair Labor Standards Act and analogous Ohio state law.” R. 91-1
(Gulf Interstate’s Brief in Support of Mot. for Summ. J. at 1) (Page ID #3056). The district court
granted Gulf Interstate’s motion, concluding that Hughes and McDonald were exempt on the
grounds that “actual payment practice”—regardless of the existence of guarantee—controlled the
question and “there [was] no dispute that Plaintiffs were actually paid the requisite amount.”


        3
            Hughes does not seem to have missed any days due to illness.
        4
         Kramer also testified that employees were paid for sick days, but that such pay was the result of “an
agreement with MarkWest” and disbursed at MarkWest’s discretion, as was pay for unworked holidays. R. 93-3
(Kramer Dep.) (Page ID #3253)
        5
          The only apparent exceptions are permissible ones, such as for McDonald’s last week of work or a week
in which Hughes performed no work. See, e.g., R. 42-11 (Kramer Decl. Ex. AO) (Page ID #551); R. 42-10 (Kramer
Decl., Ex. AD) (Page ID #508); see also, e.g., R. 90-2 (Mot. for Decertification, App’x A) (Page ID #1075, 1086).
 No. 17-3112               Hughes et al. v. Gulf Interstate Field Serv.                    Page 5


R. 110 (Dist. Ct. Summ. J. Op. & Order at 6) (Page ID #3740). After a successful motion for
clarification, R. 117 (Clarification Order) (Page ID #3772), a successful motion to sever and
stay, R. 129 (Severance Order) (Page ID #3848), and an entry of final judgment under Rule
54(b) as to Hughes and McDonald, see R. 131 (Final J. Order) (Page ID #3855), this appeal
followed.

                                        II. DISCUSSION

       This case turns on two issues: (1) whether it matters, for purposes of the salary-basis
requirement, whether at least arguably day-rate workers like Hughes and McDonald were
guaranteed the requisite minimum weekly salary, and (2) if so, whether there was in fact such a
guarantee. We conclude that it does matter, and that there is a genuine issue as to whether such a
guarantee existed.

A. Standard of Review
       “We review de novo a district court’s order granting summary judgment, applying the
standard set forth in Rule 56(a).” Keller v. Miri Microsystems LLC, 781 F.3d 799, 806 (6th Cir.
2015). Under that rule, we must “grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). There is no such genuine dispute when “the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In conducting this review, “we must view
all evidence in the light most favorable to the nonmoving party.” Kleiber v. Honda of Am. Mfg.,
Inc., 485 F.3d 862, 868 (6th Cir. 2007).

B. Whether a Guarantee Matters
       The FLSA prohibits, for qualifying employees, employment “for a workweek longer than
forty hours unless such employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half times the regular rate at which he is
employed.”     29 U.S.C. § 207(a)(1).      Some employees, however, are exempt from this
requirement. See id. This protection does not apply, for example, to employees “employed in a
 No. 17-3112               Hughes et al. v. Gulf Interstate Field Serv.                  Page 6


bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1); see also
Ohio Rev. Code Ann. § 4111.03(A), (D)(3)(d) (same).

       The overarching question in this case is whether Hughes and McDonald fell under this set
of exemptions during their employment with Gulf Interstate. An exemption is an affirmative
defense, and an employer seeking to assert one “must establish through ‘clear and affirmative
evidence’ that the employee meets every requirement of [the] exemption.” Thomas v. Speedway
SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting Ale v. Tenn. Valley Auth.,
269 F.3d 680, 691 n.4 (6th Cir. 2001)).          The Supreme Court has made clear that such
“exemptions are to be narrowly construed against the employers seeking to assert them and their
application limited to those establishments plainly and unmistakably within their terms and
spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960).

       The Secretary of Labor has promulgated rules to govern whether an employee qualifies
for the set of exemptions at issue. Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 846
(6th Cir. 2012). Under 29 C.F.R. § 541.601, an employee qualifies as an exempt “[h]ighly
compensated employee[]” if three tests are met: “(1) a duties test; (2) a salary-level test; and
(3) a salary-basis test.” Orton, 668 F.3d at 846. The duties and salary-level tests are not in
question here; the “sole issue” is “whether Hughes and McDonald met the ‘salary basis’ test.”
See Appellants’ Br. at 13; see also id. at 20.

       Under the governing regulations, an employee meets the salary-basis test “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.” 29 C.F.R.
§ 541.602(a). To Gulf Interstate and the district court, one key phrase within this test—“if the
employee regularly receives”—resolves this case. See Appellee’s Br. at 20; R. 110 (Dist. Ct.
Summ. J. Op. & Order at 6) (Page ID #3740). They come to that conclusion because, as we have
noted before, that regulatory phrase was once longer; it used to read: “if under his employment
agreement he regularly receives,” Baden-Winterwood v. Life Time Fitness, Inc., 566 F.3d 618,
627 (6th Cir. 2009) (emphasis added) (quoting 29 C.F.R. § 541.118(a) (1973)). Thus, when a
restaurant-franchise vice president named John Orton, who had an “annual base salary . . . set at
 No. 17-3112              Hughes et al. v. Gulf Interstate Field Serv.                     Page 7


$125,000,” sued his employer “for damages stemming from [a] period he claim[ed] he worked
but was not paid,” Orton, 668 F.3d at 845, we rejected the restaurant franchise’s argument (and
reversed the district court’s ruling) that Orton was exempt “based on the salary that [he was]
owed under [his] employment agreement” rather than what he actually received, id. at 848
(quoting Orton v. Johnny’s Lunch Franchise, LLC, No. 10–11013, 2010 WL 2854303, at *5
(E.D. Mich. July 20, 2010)). Instead, in light of § 541.602(a)’s new language, “the relevant
starting point for whether [Orton was] paid on a salary basis” was “not what Orton was owed
under his employment agreement,” but “rather . . . what compensation Orton actually received.”
Orton, 668 F.3d at 848.

       To conclude that our holding in Orton controls Hughes and McDonald’s case, however,
is to put the cart before the horse. The reason that the “regularly receives” language was decisive
there was because Orton so clearly met the other textual requirements of § 541.602(a): he had an
“annual base salary . . . set at $125,000.” Orton, 668 F.3d at 845. In other words, he was clearly
paid “on a weekly, or less frequent basis,” and his “compensation . . . [was] not subject to
reduction because of variations in the quality or quantity of the work performed.” See 29 C.F.R.
§ 541.602(a). It was guaranteed.

       Those textual prerequisites are not, by contrast, met here. Hughes and McDonald have
introduced evidence that they were paid a “[d]ay rate,” R. 93-2 (Sprick Dep., Ex. 3) (Page ID
#3182), and that their salary was calculated at rate of “$337.00/Day Worked,” R. 31-1 (Hughes
Decl., Ex. 1) (Page ID #154). There is thus reason to conclude that their pay was calculated
more frequently than weekly. And it is very much disputed whether what they received weekly
was in fact guaranteed.

       The text of § 541.602(a) does not tell us what to do when an employee’s salary is not
clearly calculated “on a weekly, or less frequent basis.” Hughes and McDonald, however, point
us to a neighboring provision that might be helpful. See, e.g., Appellants’ Br. at 17. As they
observe, § 541.604(b) states:

              An exempt employee’s earnings may be computed on an hourly, a daily or
       a shift basis, without losing the exemption or violating the salary basis
       requirement, if the employment arrangement also includes a guarantee of at least
 No. 17-3112               Hughes et al. v. Gulf Interstate Field Serv.                    Page 8


        the minimum weekly required amount paid on a salary basis regardless of the
        number of hours, days or shifts worked, and a reasonable relationship exists
        between the guaranteed amount and the amount actually earned.

29 C.F.R. § 541.604(b). This language, Hughes and McDonald point out, retains the key phrase
“employment arrangement,” redolent of the bygone textual reference to an “employment
agreement,” the newfound absence of which we found telling in Orton and Baden-Winterwood.
Appellants’ Br. at 27; see Orton, 668 F.3d at 848; Baden-Winterwood, 566 F.3d at 627. And
§ 541.604(b), meanwhile, specifically requires “a guarantee of at least the minimum weekly
required amount paid on a salary basis.” 29 C.F.R. § 541.604(b) (emphasis added). Thus,
Hughes and McDonald argue, under § 541.604(b), we must look for a guarantee—and to assess
whether there was a guarantee, we must, by negative implication from our own precedents, look
beyond payment received to the formal terms of the employment arrangement.

        Gulf Interstate argues that we should pay no attention to § 541.604(b) in this case,
directing us to precedent from our sister circuits that, it claims, says as much. Appellee’s Br. at
21 (citing Anani v. CVS RX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint
Consulting Grp., Inc., 772 F.3d 1, 5 (1st Cir. 2014)). And it is true that the First and Second
Circuit decisions that Gulf Interstate cites do reject reference to § 541.604(b) in certain
situations.   See Litz, 772 F.3d at 5; Anani, 730 F.3d at 149.            But what Gulf Interstate
misunderstands about these authorities—as it does about Orton—is that the situations in which
those authorities ignore § 541.604(b) are situations in which the textual requirements of
29 C.F.R. §§ 541.601, 541.602(a) are already clearly met. See Litz, 772 F.3d at 5; Anani,
730 F.3d at 149. In other words, Anani and Litz involved plaintiffs who, like Orton in our
previous decision and unlike Hughes and McDonald here, were undisputedly guaranteed weekly
base salaries above the qualifying level.

        Anani, for one, involved a pharmacist whose “salary was based on a forty-four hour work
week,” and whose “base weekly salary exceeded $1250 at all pertinent times” and “was
guaranteed.” 730 F.3d at 147. We know that these facts were important to the Second Circuit
because they said so in reaching their holding. As they explained:
 No. 17-3112              Hughes et al. v. Gulf Interstate Field Serv.                     Page 9


       It is undisputed that, at all pertinent times, appellant’s base salary substantially
       exceeded $455 per week and there were no impermissible deductions. There is
       also no dispute that appellant’s base weekly salary was guaranteed, i.e. to be paid
       regardless of the number of hours appellant actually worked in a given forty-four-
       hour shift. The requirements of C.F.R. §§ 541.600 and 541.602 are thus satisfied
       with regard to the minimum guaranteed weekly amount being paid “on a salary
       basis.”

Id. at 148. “We perceive no cogent reason,” they ultimately concluded, “why the requirements
of C.F.R. § 541.604 must be met by an employee meeting the requirements of C.F.R.
§ 541.601,” as spelled out further in § 541.602(a). Id. at 149. Here, by contrast, to say that
Hughes and McDonald “meet[] the requirements of C.F.R. § 541.601,” as spelled out further in
§ 541.602(a), is at best to beg the question: there is a “dispute that their base weekly salary was
guaranteed,” as well as a dispute that their base salary was calculated “weekly” at all. See id. at
148.

       Gulf Interstate’s comparison to Litz fails similarly.             In Litz, the employer’s
“compensation plan for the relevant time provided” that all employees in the plaintiffs’ position
would “be guaranteed a minimum weekly salary of $1,000 whether they bill[ed] any hours or
not.” 772 F.3d at 2. The plaintiffs had attempted to invoke § 541.604(b), meanwhile, to argue
that the employer’s weekly guarantee was required “to be reasonably related to plaintiffs’ actual
pay,” id. at 5, in keeping with a later clause in § 541.604(b) (“An exempt employee’s earnings
may be computed on an hourly, a daily or a shift basis, . . . if the employment arrangement also
includes a guarantee . . . and a reasonable relationship exists between the guaranteed amount
and the amount actually earned.” (emphasis added)). Like Anani and Orton, in other words, Litz
involved plaintiffs for whom the existence of a guarantee was not in question and whose pay was
undisputedly calculated “on a weekly, or less frequent basis,” see 29 C.F.R. § 541.602(a). Thus,
although these distinctions may be easily overlooked when any of the foregoing cases is reduced
to a soundbite, we do not here contravene the decisions of our sister circuits, nor our own
decision in Orton.     We simply rule that the threshold question of whether there was a
guarantee—not at issue in those cases, but very much disputed here—matters for determining
whether employees whose pay was at least arguably calculated on a daily basis qualified as
exempt.
 No. 17-3112              Hughes et al. v. Gulf Interstate Field Serv.                  Page 10


       Although § 541.604(b) provides textual evidence of the importance of a guarantee, we
need not decide today whether it is the controlling source of evidence supporting our reading.
The section defining the salary-basis test, § 541.602(a), itself indicates the importance of a
guarantee: it provides that what “the employee regularly receives each pay period” must not be
“subject to reduction because of variations in the quality or quantity of the work performed.”
29 C.F.R. § 541.602(a); see also Duffie v. The Michigan Grp., Inc., No. 14-CV-14148, 2016 WL
28987, at *4 (E.D. Mich. Jan. 4, 2016) (“Employers are still required to make a showing that an
employee’s ‘predetermined’ pay was not subject to reduction.”), reconsid. on other grounds sub
nom. Duffie v. Michigan Grp., Inc.–Livingston, No. 14-CV-14148, 2016 WL 8259511 (E.D.
Mich. Jan. 15, 2016). Indeed, the Second Circuit in Anani, which Gulf Interstate itself points us
to, clearly read § 541.602(a) as requiring such a guarantee. See Anani, 730 F.3d at 148 (reciting
the requirements of § 541.602(a) and then explaining that there was “no dispute that appellant’s
base weekly salary was guaranteed, i.e. to be paid regardless of the number of hours appellant
actually worked in a given forty-four-hour shift”). Thus, whether one looks to the phrase
“includes a guarantee,” 29 U.S.C. § 541.604(b), or to the phrase “which amount is not subject to
reduction,” 29 C.F.R. § 541.602(a), it is legally significant whether Hughes and McDonald’s
weekly salary was a matter of right or a matter of grace.

       It bears noting that this understanding of the governing regulations is not only consistent
with our own decision in Orton and our sister circuits’ decisions in Litz and Anani, but also
accords with Department of Labor guidance. See U.S. Dep’t of Labor, Wage & Hour Div.,
Opinion Letter, Fair Labor Standards Act (July 9, 2003), 2003 WL 23374601, at *2 (“If a pay
system compensates employees who are claimed to be exempt on the basis of hourly wage rates
computed from their actual hours worked each week, it is necessary to determine whether a
salary guarantee is in effect and operational. Payment on an hourly basis without an operative
salary guarantee does not qualify as a ‘salary basis’ of payment within the meaning of the
regulations.”). That guidance applies just as well here, where Hughes and McDonald have
introduced evidence to suggest that their pay was not calculated hourly, but daily. If Hughes and
McDonald are to qualify as exempt under § 541.601, in short, it matters whether their minimum
 No. 17-3112                   Hughes et al. v. Gulf Interstate Field Serv.                               Page 11


weekly salary was in fact guaranteed, or whether it was simply something that Gulf Interstate
had not so far availed itself of its right to reduce.6

C. Whether There Was a Guarantee Here
        On the record before us, there is a genuine issue of material fact as to whether Hughes
and McDonald were guaranteed a qualifying minimum weekly salary. A genuine issue of
material fact exists, as we noted above, when “the record taken as a whole could . . . lead a
rational trier of fact to find for the non-moving party.” See Matsushita, 475 U.S. at 587. And in
conducting this review, “we must view all evidence in the light most favorable to the nonmoving
party.” Kleiber, 485 F.3d at 868. Here, while Gulf Interstate has established that Hughes and
McDonald were paid during the time that each was employed on the Ohio pipeline project in a
way that was consistent with a weekly guarantee, it has not proven unreasonable the conclusion
that these payments were matters of grace rather than right. See, e.g., R. 31-1 (Hughes Decl., Ex.
1) (Page ID #154) (“Salary: $337.00/Day Worked.”); R. 93-2 (Sprick Dep., Ex. 3) (Page ID
#3182) (noting that the “[d]ay rate” would be “paid on days worked”); R. 93-2 (Sprick Dep., Ex.
12) (Page ID #3241) (stating that inspectors are “[p]aid for days worked only”). In light of
Hughes and McDonald’s evidence, the standard on summary judgment, and the Supreme Court’s
guidance that “exemptions are to be narrowly construed against the employers seeking to assert
them and their application limited to those establishments plainly and unmistakably within their
terms and spirit,” Arnold, 361 U.S. at 392, we cannot say that Hughes and McDonald lose as a
matter of law.

        The “verbal guarantees” that Gulf Interstate asserts that Hughes and McDonald received
“at the outset of their employments,” Appellee’s Br. at 31, do not change this result. To be sure,
they offer evidence of a guarantee. But an exemption is an affirmative defense, and thus it is
Gulf Interstate’s burden to prove. See, e.g., Orton, 668 F.3d at 847. Oral evidence submitted by
Gulf Interstate that contradicts written evidence submitted by Hughes and McDonald may well

        6
          The record does not disclose, nor is it necessary for us to determine, reasons why a business might pay its
employees for days that it is not obligated to pay them. It is possible, for example, that providing such pay is good
for morale, or administratively efficient, or simply a gratuity when times are good. The important point here is
simply that if an employer wishes to pay its employees on a daily, hourly, or shift basis, then those employees will
not be exempt under § 541.601 unless (alongside the other requirements) they are nevertheless guaranteed a
qualifying minimum weekly salary.
 No. 17-3112               Hughes et al. v. Gulf Interstate Field Serv.                    Page 12


weaken Hughes and McDonald’s case, and perhaps it will convince a jury to find for Gulf
Interstate. But it does not extinguish the genuine issue of material fact here.

       Nor does the pay that Hughes and McDonald actually received suffice. “It is not enough
under the salary-basis test for an employer to show only that the employee received the same
amount of pay each week, as doing so would negate the remainder of the test.” Duffie, 2016 WL
28987, at *4. While it is possible that an employer who provided consistent weekly pay for
decades could fall back on that longstanding practice as stronger evidence of a guarantee, that is
not this case. Here, instead, the record indicates that Hughes and McDonald worked as welding
inspectors on the pipeline project for approximately fifteen and eight months, respectively. See
R. 31-1 (Hughes Decl.) (Page ID #151); R. 31-2 (McDonald Decl.) (Page ID #155). That Gulf
Interstate paid them in a way that is consistent with a guarantee during this relatively short period
of time does not establish, in the face of the contradictory evidence and for purposes of summary
judgment, that Gulf Interstate gave them the protection of a guarantee.

       Arguing in the alternative that it did provide Hughes and McDonald with a guarantee,
Gulf Interstate reads our language in Douglas v. Argo-Tech Corp., 113 F.3d 67 (6th Cir. 1997),
to mean that “this Court equated the ‘predetermined amount’ of the salary basis test with a
‘guarantee.’” Appellee’s Br. at 24 (quoting Douglas, 113 F.3d at 71). In support of that
purported equivalence, Gulf Interstate cites our statement that “[a]n employee is salaried even if
his compensation consists of a guaranteed predetermined amount plus additional compensation.”
Id. (quoting Douglas, 113 F.3d at 71). But that sentence does not mean that a “guarantee” is the
same thing as a “predetermined amount” under circuit precedent. First of all, Gulf Interstate’s
theory runs counter to foundational rules of interpretation:         if “guaranteed predetermined
amount” means the same thing as “predetermined amount,” then the word “guaranteed” is
surplusage. Cf. Corley v. United States, 556 U.S. 303, 314 (2009) (identifying as “one of the
most basic interpretive canons[] that ‘[a] statute should be construed so that effect is given to all
its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .’”
(quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004))). Gulf Interstate, in other words, asks us to
interpret our prior precedent as having defined this equation not only sub silentio, but also by
speaking in superfluities. That is a hard proposition to accept, especially given the standard of
 No. 17-3112                   Hughes et al. v. Gulf Interstate Field Serv.                               Page 13


review on summary judgment and the narrow construction to be given exemptions. It is equally
hard to accept given dictionary definitions of the word “guarantee.” See, e.g., Guarantee,
BLACK’S LAW DICTIONARY (10th ed. 2014) (“The assurance that a contract or legal act will be
duly carried out.”); Guarantee, Merriam-Webster Unabridged, http://unabridged.merriam-
webster.com/unabridged/guarantee (“[A]n assurance for the fulfillment of a condition.”). The
operative idea behind a guarantee, in other words, is in this context that the employer is
contractually obligated not to change its mind and reduce whatever amount it previously
determined to provide. Because a reasonable trier of fact could conclude that Hughes and
McDonald received no such guarantee from Gulf Interstate, Gulf Interstate cannot prevail on
summary judgment.7

                                             III. CONCLUSION

        It may seem strange, on its face, that employees who earned an annualized rate of more
than $100,000 did not necessarily qualify as “highly compensated employees.” But regardless of
whether good reasons exist, we must follow the legal meaning of the terms rather than our
intuitive sense of the meaning of the words. Because § 541.602(a) and § 541.604(b) make clear
that it matters whether Hughes and McDonald were guaranteed a qualifying weekly salary, and
because a reasonable trier of fact could find that there was no guarantee, we REVERSE the
district court’s grant of summary judgment and REMAND for further proceedings.




        7
           Another way to look at this case, accordingly, is to consider a hypothetical universe in which Gulf
Interstate had begun refusing to provide Hughes and McDonald with six days of work per week and Hughes and
McDonald had sued for breach of contract. To accept Gulf Interstate’s argument that there was indisputably a
guarantee is tantamount to agreeing that Hughes and McDonald would have been entitled to summary judgment for
their hypothetical breach-of-contract claim. And yet it is hard to believe that Hughes and McDonald would have
been entitled to prevail as a matter of law if they had come into court citing Gulf Interstate’s “verbal guarantees,”
Appellee’s Br. at 31; see R. 90-9 (Hughes Dep.) (Page ID #1637); 90-10 (McDonald Dep.) (Page ID #1750, 1752);
R. 90-20 (Williamson Dep.) (Page ID #2684), in the face of written evidence that they would be paid a “[d]ay rate,”
see 93-2 (Sprick Dep., Ex. 3) (Page ID #3182); see also R. 31-1 (Hughes Decl., Ex. 1) (Page ID #154) (“Salary:
$337.00/Day Worked.”). An employer, in other words, cannot have it both ways: it must either provide its
employees with the clear protection of a guaranteed weekly salary against the eventuality of its deciding to reduce
their days, or it must forgo the benefits of a clear exemption. Here, although the record indicates that Hughes and
McDonald never suffered the vicissitudes of Gulf Interstate choosing to reduce their days, there is far less evidence
that they were protected against such vicissitudes.
