On September 9, 2021, the Fifth Circuit issued a 12-6 opinion in Hewitt v. Helix Energy Solutions Group, Inc., 15 F.4th 289 (5th Cir. 2021) that clarified the requirements for day rate workers to fall within one of the FLSA’s exemptions from overtime payment. This ruling was hotly-contested because it made clear that employers must take additional steps to properly classify their day rate workers as exempt employees, even when those employees clearly exceed the financial threshold of the highly compensated exemption. Many expect the decision to substantially affect the course of day rate FLSA litigation in the Fifth Circuit, especially misclassification disputes within the energy industry.

The defendant oil and gas services company in this case filed a writ of certiorari with the Supreme Court that was docketed on January 11, asserting that the Fifth Circuit’s ruling is in conflict with the FLSA and the Supreme Court’s own precedent directing lower courts to construe the FLSA exemptions broadly, rather than to take a more narrow view of them. Helix also argued that the Fifth Circuit’s decision goes against rulings in the Sixth and Eighth Circuits, both of which ruled in favor of the employers involved, finding that the highly compensated workers involved were not entitled to overtime.

Hewitt’s response to Helix’s writ of certiorari is due February 10. The case is docketed as number 21-984 with the Supreme Court.