     Case: 19-20023   Document: 00515388040     Page: 1   Date Filed: 04/20/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 19-20023
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
MICHAEL J. HEWITT,                                                April 20, 2020
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

HELIX ENERGY SOLUTIONS GROUP, INCORPORATED; HELIX WELL
OPS, INCORPORATED,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      A panel of this court recently divided over the proper interpretation of a
Labor Department regulation issued under the Fair Labor Standards Act
(FLSA). See Faludi v. U.S. Shale Sols., 936 F.3d 215 (5th Cir. 2019), opinion
withdrawn, 950 F.3d 269 (5th Cir. 2020). Today we revisit the issue initially
raised, but ultimately left undecided, in Faludi.
      The regulation in question defines what it means for an employee to be
compensated on a “salary basis”—a requirement that must be met for an
employer to qualify for certain exemptions under the FLSA. As the regulation
makes clear, an employee is paid on a “salary basis” if he “regularly receives
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                                  No. 19-20023
each pay period on a weekly, or less frequent basis, a predetermined amount”—
and if that salary is paid “without regard to the number of days or hours
worked.” 29 C.F.R. § 541.602(a), (a)(1).
      Based on those provisions, the dissent in Faludi concluded that an
employee is not paid on a salary basis—and therefore is entitled to the
protections of the FLSA—if the employee is paid a daily, rather than weekly,
rate. See 936 F.3d at 222 (Ho, J., dissenting). The majority initially disagreed.
Id. at 220. But after the employee in Faludi filed a petition for rehearing en
banc, the panel majority withdrew its earlier opinion and decided the case on
other grounds. See Faludi v. U.S. Shale Sols., 950 F.3d 269, 271 (5th Cir.
2020).
      The case we decide today presents the same interpretive question that
divided our court in Faludi. We hold, consistent with the dissent in Faludi,
that an employee who is paid a daily rate is not paid on a “salary basis” under
29 C.F.R. § 541.602(a). Accordingly, we reverse the district court and remand
for further proceedings.
                                       I.
      Michael Hewitt was an employee of Helix for over two years, working as
a Tool Pusher. In that position, Hewitt managed other employees while on a
“hitch”—that is, while working offshore on an oil rig. Each hitch lasted about
a month. Helix paid Hewitt a set amount for each day that he worked. Hewitt
received his paycheck biweekly.
      Hewitt worked more than forty hours a week. So under the FLSA, he
would ordinarily be entitled to overtime unless he was an exempt employee.
29 U.S.C. §§ 207(a)(1), 213(a)(1).
      And that is what Helix contends, arguing that Hewitt is either an exempt
executive or highly compensated employee. See 29 C.F.R. § 541.100 (executive
employees); § 541.601 (highly compensated employees).
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                                 No. 19-20023
      Both of those exemptions require the employer to meet both a duties test
and a salary test. The salary test, in turn, has two components—first, the
employer must pay the employee a minimum per-week rate, and second, the
employer must pay the employee on a “salary basis.” Id.
      Hewitt contends that Helix did not pay him on a “salary basis” because
it calculated his pay based on a daily, rather than weekly, rate. Helix responds
that Hewitt’s daily rate was greater than the weekly salary requirement under
Labor Department regulations. Accordingly, Helix argues, so long as Hewitt
worked at least a single day during any particular week, he would receive more
than the weekly salary requirement, and was therefore paid on a “salary basis”
under Labor Department regulations.
      The district court agreed with Helix and granted summary judgment to
the company on the ground that Hewitt is exempt as either an executive or
highly compensated employee. Hewitt v. Helix Energy Sols. Grp., Inc., 2018
WL 6725267, at *4 (S.D. Tex. Dec. 21, 2018). Hewitt appealed.
      The primary question presented on appeal is purely a matter of legal
interpretation. As such, review is de novo. See 21st Mortg. Corp. v. Glenn (In
re Glenn), 900 F.3d 187, 189 (5th Cir. 2018). For the reasons we explain below,
we reverse.
                                      II.
      At the heart of this appeal is the proper interpretation of the following
Labor Department regulation:
      An employee will be considered to be paid on a ‘salary basis’ within
      the meaning of this part 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) (emphasis added).


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                                       No. 19-20023
       Broadly speaking, then, § 541.602(a) requires that an employee receive
for each pay period a “predetermined amount” calculated on a “weekly, or less
frequent” pay period. To put it plainly: The salary basis test requires that an
employee know the amount of his compensation for each weekly (or less
frequent) pay period during which he works, before he works. 1
       An example helps: Consider an employee with an employment contract
providing an annual salary to be paid biweekly. That employee can easily
determine what he will receive every two weeks before he works—just divide
his annual salary by twenty-six. He is thus “paid on a ‘salary basis.’” See U.S.
Dep’t of Labor, Wage & Hour Div., Opinion Letter (July 9, 2003) (reviewing a
pay system guaranteeing that employees “will be paid at least 1/26th of their
annual salary every other week”). 2
       Now consider Hewitt. He was paid biweekly. But he did not receive a
constant fraction of his annual compensation—akin to the 1/26th amount
mentioned above—for each biweekly pay period. Rather, he had to take the
number of days he worked (past tense) and multiply by the operative daily rate
to determine how much he earned. So Hewitt knew his pay only after he
worked through the pay period.




       1  Subsection (b) does allow employers to deduct, and thus, vary, employees’ pay while
still paying them on a salary basis. That subsection is not at issue in this case.
        2 To be sure, that is an approximation—there are 52 weeks plus one day in a 365-day

year. So technically, the annually-salaried employee will receive slightly less than 1/26th of
the annual salary per biweekly paycheck. But the point is the same—that employee can
count on receiving at least that predetermined amount for each biweekly paycheck. See also,
e.g., Escribano v. Travis County, 947 F.3d 265, 267 (5th Cir. 2020) (“‘Salary basis’ . . .
generally means what its label suggests: an employee is paid on a salary basis if he or she
receives the same wage each pay period.”); Hughes v. Gulf Interstate Field Servs., Inc., 878
F.3d 183, 189 (6th Cir. 2017) (noting that an annual salary meets the salary basis test); id.
at 193 n.7 (comparing payment on a salary basis to an employment contract with a set
compensation); In re Wal-Mart Stores, Inc., 395 F.3d 1177, 1184 (10th Cir. 2005) (“[T]he
natural reading of [‘predetermined amount’] is that it refers to the amount previously agreed
on for the period for which the salary is to be paid.”).
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                                        No. 19-20023
       As a result, he did not receive a “predetermined amount” “on a weekly,
or less frequent basis”—rather, he received an amount contingent on the
number of days he worked each week. So he was not paid on a “salary basis”
under Labor Department regulations. See, e.g., Hughes v. Gulf Interstate Field
Servs., Inc., 878 F.3d 183, 189 (6th Cir. 2017) (calculating compensation based
on a per-day amount meant that “it was very much disputed whether what [the
employees] received weekly was in fact guaranteed”); cf. Anani v. CVS RX
Servs., Inc., 730 F.3d 146, 148 (2d Cir. 2013) (noting that an employee’s salary
was “guaranteed” when it was “paid regardless of the number of hours
appellant actually worked in a given forty-four-hour shift”). 3
       Any doubt that this is a proper reading of § 541.602(a) is put fully to rest
by looking at § 541.602(a)(1). That section provides as follows: “[A]n 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.” 29
C.F.R. § 541.602(a)(1) (emphases added).
       Hewitt’s pay cannot be squared with this provision. He was paid on a
daily rate—so he was paid “with” (not “without”) “regard to the number of days
or hours worked,” in direct conflict with the plain language of § 541.602(a)(1).
So § 541.602(a)(1) confirms that Hewitt was not paid on a salary basis. 4


       3  If Hewitt and Helix agreed beforehand on the length of each hitch, there could be an
argument that Hewitt’s salary was “predetermined.” See, e.g., Thomas v. County of Fairfax,
803 F. Supp. 1142, 1149 n.15 (E.D. Va. 1992). Helix did not make that argument to the
district court, and only mentions that point here in passing, burying it in a paragraph
discussing § 541.604(b). So we will not consider the argument. See, e.g., AG Acceptance
Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009) (“[A]rguments not raised before the district
court are waived.”); Brinkmann v. Dall. Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987) (“We will not raise and discuss legal issues that [a party] failed to assert.”).
        4 The parties also discuss whether Helix meets the alternative requirements of 29

C.F.R. § 541.604(b), which governs employment compensation based on minimum weekly
guarantee in addition to hourly or daily rates. As § 541.604(b) provides, an employer may
“compute[ an employee’s earnings] on an hourly, a daily or a shift basis,” while still satisfying
“the salary basis requirement,” so long as “the employment arrangement also includes a
guarantee of at least the minimum weekly required amount paid on a salary basis”—that is,
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                                      No. 19-20023
                                           ***
       We reverse the grant of summary judgment to Helix and remand for
proceedings consistent with this opinion. 5




paid according to § 541.602. 29 C.F.R. § 541.604(b). Two problems here: As explained above,
Helix did not pay Hewitt on a salary basis, as § 541.604(b) expressly requires. Moreover,
§ 541.604(b) requires that there be “a reasonable relationship . . . between the guaranteed
amount and the amount actually earned.” Helix does not even attempt to claim that it meets
that requirement, instead saying that the test does not apply.
       5 Hewitt also asks for liquidated damages. See 29 U.S.C. § 216(b). But the district

court decided this case on summary judgment. Issues relating to liability, including whether
liquidated damages are appropriate, see, for example, Lowe v. Southmark Corp., 998 F.2d
335, 337 (5th Cir. 1993), are best left to the district court in the first instance.
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