Lynwood Pickens, individually and for others similarly situated v. Hamilton-Ryker It Solutions, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0074p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LYNWOOD PICKENS, individually and for others
similarly situated,
Plaintiff-Appellant/Cross-Appellee,
v.
HAMILTON-RYKER IT SOLUTIONS, LLC,
Defendant-Appellee/Cross-Appellant.
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Nos. 24-5407/5459
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:20-cv-00141—William Lynn Campbell, Jr., District Judge.
Argued: February 5, 2025
Decided and Filed: April 1, 2025
Before: SUTTON, Chief Judge; KETHLEDGE and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Richard J. (Rex) Burch, BRUCKNER BURCH PLLC, Houston, Texas, for
Lynwood Pickens. Ashlee Cassman Grant, BAKER & HOSTETLER LLP, Houston, Texas, for
Hamilton-Ryker IT Solutions. ON BRIEF: Richard J. (Rex) Burch, BRUCKNER BURCH
PLLC, Houston, Texas, David M. Mathews, JOSEPHSON DUNLAP LLP, Houston, Texas,
Melody L. Fowler-Green, YEZBAK LAW OFFICES PLLC, Nashville, Tennessee, for Lynwood
Pickens. Ashlee Cassman Grant, Jennifer R. DeVlugt, BAKER & HOSTETLER LLP, Houston,
Texas, for Hamilton-Ryker IT Solutions. Erin M. Mohan, Anne W. King, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae.
SUTTON, C.J., delivered the opinion of the court in which KETHLEDGE, J., concurred,
and MURPHY J., concurred in part. KETHLEDGE, J. (pg. 22), delivered a separate concurring
opinion. MURPHY, J. (pp. 23–34), delivered a separate opinion concurring in part and
dissenting in part.
>

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_________________
OPINION
_________________
SUTTON, Chief Judge. The distinction between “salaried” and “hourly” workers under
the Fair Labor Standards Act is easy to state. Salaried employees receive steady, predictable pay
regardless of the number of hours they work. Hourly workers receive pay based on the number
of hours they work. But sometimes the test is easier to state than to apply. Lynwood Pickens
regularly worked more than 50 hours per week at $100 per hour but was guaranteed pay each
week for the equivalent of 8 hours, with every subsequent hour paid hourly. His employer
classified him as “salaried.” He sued. At summary judgment, the district court determined that
Pickens was a salaried worker. We reverse and remand.
I.
Pickens inspects pipes. From 2018 to 2019, he worked for an employment agency called
Hamilton-Ryker IT Solutions, which assigned him to a natural-gas export terminal in Texas. For
any week in which Pickens worked, Hamilton-Ryker paid him a “guaranteed weekly salary” of
$800, a figure based on eight hours of pay at Pickens’ $100 hourly rate. R.100-6 at 8. If Pickens
worked more than eight hours in any given week, which he always did, he received additional
compensation at $100 per hour. Over the course of his employment, Pickens worked 28 hours in
his slowest week (receiving $2,800), and 83 hours in his busiest (receiving $8,300). On average,
he worked for just under 52 hours per week, making his usual earnings $5,200 per week, what
would come to annualized earnings of $270,400. If Pickens worked more than 40 hours in a
week, Hamilton-Ryker did not pay him overtime (time and a half or $150 per hour) because the
company classified him as a salaried worker, making him exempt from the Fair Labor Standards
Act.
Pickens viewed this arrangement differently, prompting him to sue the company in 2020
on the ground that he was a non-exempt hourly worker. Fourteen of Pickens’ coworkers opted in
to the lawsuit, filed as a “collective action” under the Act. Pickens and his coworkers moved for
summary judgment. So did Hamilton-Ryker. The district court granted summary judgment to

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Hamilton-Ryker, treating Pickens as a salaried employee under the Act. It dismissed Pickens’
coworkers on the ground that the court had not determined that they were “similarly situated” to
Pickens. Pickens, his coworkers, and Hamilton-Ryker appeal.
II.
Before turning to the merits, we must consider whether a Fifth Circuit case arising from
the same pay arrangements for other Hamilton-Ryker employees resolves the issues for us. In a
nearly identical lawsuit filed by Pickens’ coworkers against Hamilton-Ryker, the Fifth Circuit
held that comparable workers deserved overtime pay. Gentry v. Hamilton-Ryker IT Sols., LLC,
102 F.4th 712, 722–23 (5th Cir. 2024). Pickens claims that issue preclusion prevents Hamilton-
Ryker from relitigating the point in this case.
The problem for Pickens is that offensive issue preclusion generally is unavailable “in
cases where a plaintiff could easily have joined in the earlier action.” Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 331 (1979). Nothing prevented Pickens from joining or consolidating his
claims with Terry Gentry, who filed the first lawsuit. Both cases challenged the same pay
practice. They involved the same employer. They concerned the same pay period. And they
arose under the same federal law. Pickens chose to carve out his claims and pursue separate
litigation. He cannot now claim the benefit of the Gentry judgment after avoiding its risks. A
claimant who opts out of a class action may not “claim the benefits of the class’s victory”
through issue preclusion after steering clear of its perils. Premier Elec. Constr. Co. v. Nat’l Elec.
Contractors Ass’n, 814 F.2d 358, 367 (7th Cir. 1987). Pickens offers no good reason to treat a
collective action under the Fair Labor Standards Act differently.
In insisting that he shouldn’t have been required to consolidate his claims with Gentry,
Pickens submits that no other factors (like inconsistent judgments) suggest that issue preclusion
“would be unfair to” Hamilton-Ryker. Parklane Hosiery, 439 U.S. at 331. That is true. But it is
irrelevant. Parklane Hosiery’s “general rule” prohibits offensive issue preclusion “where a
plaintiff could easily have joined in the earlier action or where” preclusion would otherwise “be
unfair” to the defendant. Id. (emphasis added). This bar on free ridership remains even if a
defendant has every reason to vigorously litigate the first lawsuit and even if the first lawsuit

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came with every procedural protection known to man. See, e.g., Lloyd v. J.P. Morgan Chase &
Co., 791 F.3d 265, 271 n.5 (2d Cir. 2015); Polk v. Montgomery County, 782 F.2d 1196, 1202
(4th Cir. 1986); Hauser v. Krupp Steel Producers, Inc., 761 F.2d 204, 207 (5th Cir. 1985);
Premier Elec., 814 F.2d at 367; Sarasota Oil Co. v. Greyhound Leasing & Fin. Corp., 483 F.2d
450, 452 (10th Cir. 1973). Pickens does not present any cognizable circumstances that warrant
an exception to Parklane Hosiery’s general prohibition against offensive issue preclusion.
III.
The Fair Labor Standards Act, like many regulatory statutes, starts with a general rule
and adds a list of exceptions after it. Here is the general rule: An employer must pay his
employees overtime if they work more than 40 hours in a week. 29 U.S.C. § 207. Here are
some illustrative exceptions: An employer need not pay overtime to camp counselors, id.
§ 213(a)(3), fishermen, id. § 213(a)(5), cowhands, id. § 213(a)(6), small-town journalists, id.
§ 213(a)(8), switchboard operators, id. § 213(a)(10), part-time babysitters, id. § 213(a)(15),
professional baseball players, id. § 213(a)(19), and so on. Here is the exception at issue in this
case: An employer need not pay overtime to “any employee employed in a bona fide executive,
administrative, or professional capacity,” as those “terms are defined and delimited from time to
time by regulations of the Secretary [of Labor].” Id. § 213(a)(1).
A.
An employee works in a bona fide executive, administrative, or professional capacity if
(among other things) he is paid on a “salary basis.” 29 C.F.R. § 541.200. Those other things, by
the way, include an employee’s duties, id. § 541.201, and how much he is paid, id. § 541.601(a).
But neither one of them bears on this case.
An employer may satisfy the salary-basis test in one of two ways under the regulations.
See Helix Energy Sols. Grp. v. Hewitt, 598 U.S. 39, 46–47 (2023). The first approach appears in
§ 602 of the regulations and applies to employees paid by the year, month, or week. It reads in
relevant, if lengthy, part:

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Salary basis.
(a) General rule. 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.
(1) Subject to the exceptions provided in paragraph (b) of this section, an
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. . . .
(2) An employee is not paid on a salary basis if deductions from the
employee’s predetermined compensation are made for absences
occasioned by the employer or by the operating requirements of the
business. If the employee is ready, willing and able to work, deductions
may not be made for time when work is not available.
. . .
(b) Exceptions. The prohibition against deductions from pay in the salary basis
requirement is subject to the following exceptions:
(1) Deductions from pay may be made when an exempt employee is
absent from work for one or more full days for personal reasons, other
than sickness or disability. Thus, if an employee is absent for two full
days to handle personal affairs, the employee’s salaried status will not be
affected if deductions are made from the salary for two full-day absences.
However, if an exempt employee is absent for one and a half days for
personal reasons, the employer can deduct only for the one full-day
absence.
. . .
(6) An employer is not required to pay the full salary in the initial or
terminal week of employment. . . . However, employees are not paid on a
salary basis within the meaning of these regulations if they are employed
occasionally for a few days, and the employer pays them a proportionate
part of the weekly salary when so employed.
(7) An employer is not required to pay the full salary for weeks in which
an exempt employee takes unpaid leave under the Family and Medical
Leave Act. Rather, when an exempt employee takes unpaid leave under
the Family and Medical Leave Act, an employer may pay a proportionate
part of the full salary for time actually worked. For example, if an
employee who normally works 40 hours per week uses four hours of

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unpaid leave under the Family and Medical Leave Act, the employer could
deduct 10 percent of the employee’s normal salary that week.
29 C.F.R. § 541.602.
Under this approach, an employee receives a “salary” if he is paid “a predetermined
amount” “on a weekly[] or less frequent basis.” Id. § 541.602(a). An employee must receive
that amount—his “full salary”—“for any week in which [he] performs any work.” Id.
§ 541.602(a)(1). His pay may not be docked “for time when work is not available,” id.
§ 541.602(a)(2), if he happens to call in sick for a day or two, id. § 541.602(b)(1), or if he takes a
few hours off “for personal reasons,” id.
The second approach appears in § 604(b) of the regulations. It applies to employees who
are paid by the day, shift, or hour. It reads:
Minimum guarantee plus extras.
(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 of at least
[$455] paid on a salary basis, and a reasonable relationship exists between the
guaranteed amount and the amount actually earned. The reasonable relationship
test will be met if the weekly guarantee is roughly equivalent to the employee’s
usual earnings at the assigned hourly, daily or shift rate for the employee’s normal
scheduled workweek.
Id. § 541.604(b). Under this approach, an employee whose earnings are “computed on an
hourly, a daily, or a shift basis” nonetheless receives a “salary” if he is guaranteed a certain
amount per week that is “roughly equivalent” to his “usual earnings.” Id.
B.
At stake is what it means to be paid on a “weekly basis” under the first approach:
§ 602(a). Is it enough for an employee to receive any sum (from $0.01 on up) at the start of each
week, supplemented by an hourly or daily rate? Or must he receive some fixed compensation
that covers a week’s worth of work?
To be paid on a weekly basis, we conclude, an employee must be paid for a regular
week’s worth of work. In this context, the word “basis” refers to the “foundation” of a particular

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payment. WEBSTER’S DICTIONARY 225, 227 (2d ed. 1934) (defining “basis” and “base” as the
“foundation” of a thing, “thus, a price used as a unit from which to calculate other prices”).
Hence the fact that the payment is weekly must not be merely incidental to the payment; the
week must serve as the fundamental unit around which the payment is structured. See Helix, 598
U.S. at 54. A weekly salary must compensate an employee “for the general value of services
performed” over the week, as opposed to merely serving as a minor auxiliary to an employee’s
substantial hourly or daily pay. 2004 Final Rule, 69 Fed. Reg. 22,122, 22,177 (Apr. 23, 2004).
That is what it means to be paid on a weekly basis.
An example captures the point. If someone said that he pays a predetermined amount for
rent “on a weekly basis,” he would be understood to mean that the amount he pays is calculated
based on occupancy for a full week. No one would say that he pays a predetermined amount for
rent “on a weekly basis” and by that mean that he pays a fixed sum each Monday for one day’s
use, but needs to pay extra if he wants to occupy the property from Tuesday through Sunday. So
also for a salary. When the regulation says that a predetermined amount must be paid on a
weekly basis in the context of a “salary,” that amount must be predetermined with reference to
the task at hand: paying an employee a weekly salary. It is not enough for an employee to be
guaranteed some fixed amount weekly, which merely makes up a small subset of his pay. He
must be paid a “weekly rate, rather than a daily or hourly one.” Helix, 598 U.S. at 54 (emphasis
added).
That is what it means to be paid a “salary,” whether on a “weekly basis” or not. In 1938,
when the Secretary promulgated the predecessor to § 602(a), a “salary” referred to a “[f]ixed
payment made periodically to a person as compensation for [his] regular work” over a week, a
month, or a year. 9 OXFORD ENGLISH DICTIONARY 48 (1st ed. 1933) (def. 1); see also, e.g., 4
FUNK & WAGNALLS NEW STANDARD DICTIONARY 2162 (1st ed. 1913) (defining a salary as a
“periodical allowance made as compensation to a person . . . for his regular work”). That same
meaning prevails today. What makes a salary a salary is that it gives an employee a guarantee of
his compensation for all of his regular labor over a given period and thus allows him to “decide
for himself the number of hours to devote to a particular task.” Brock v. Claridge Hotel &
Casino, 846 F.2d 180, 184 (3d Cir. 1988). A salary, as Judge Silberman once explained,

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separates “employees who are given discretion in managing their time and their activities and
who are not answerable merely for the number of hours worked or number of tasks
accomplished” from those employees whose pay turns on those metrics. Kinney v. District of
Columbia, 994 F.2d 6, 11 (D.C. Cir. 1993). If ordinary language bears ordinary meaning, a
salary that does not compensate an employee for his “regular work” is not a salary. 9 OXFORD
ENGLISH DICTIONARY, supra, at 48.
The rest of § 602 reinforces this conclusion. Return to the detailed examples given in
§ 602, all excerpted above. Every single one makes sense only if the “salary” at issue truly
covers a week’s work. How else, for instance, could one make sense of its insistence that
employers pay a “full salary” even “for time when work is not available”? 29 C.F.R.
§ 541.602(a). Or its explanation that a deduction may be made when an employee “is absent
from work for one or more full days for personal reasons” but not otherwise? Id.
§ 541.602(b)(1). Or its description of an employee on unpaid leave, in which case an employer
“may pay a proportionate part of the full salary” based on “time actually worked”—requiring a
40-hour-per-week employee who “uses four hours of unpaid leave” to forfeit “10 percent of [his]
normal salary”? Id. § 541.602(b)(7). Or its caveat that “employees are not paid on a salary basis
under these regulations if they are employed occasionally for a few days, and the employer pays
them a proportionate part of the weekly salary when so employed”? Id. § 541.602(b)(6). Each
explanation makes sense when the “salary” at issue covers an employee’s standard workweek.
And each explanation makes no sense when the “salary” at issue covers only an hour or two (or a
minute or two) of an employee’s time each week.
That’s not the only context-reinforcing clue. Consider what would become of § 604(b)—
the second salary test—if any weekly payment, no matter whether premised on a minute, an
hour, or a day, could be a salary. Section 604(b), recall, allows an employer to avoid paying
overtime to employees paid “on an hourly, a daily, or a shift basis,” but only under certain
conditions. Id. § 541.604(b). The employer must not only pay a guaranteed amount to each
employee each week, but that amount also must be “roughly equivalent” to the employee’s usual
earnings. Id. If any sum paid weekly qualifies as a salary under § 602(a), § 604(b) “would be
left with no work to perform, its terms dead letters all.” Ysleta Del Sur Pueblo v. Texas, 596

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U.S. 685, 698 (2022). Its reasonable-relationship test would rarely, if ever, apply. For in the
prototypical case in which an employer guaranteed a weekly amount (supplemented by an hourly
rate), there would be no need to meet the additional criteria of § 604(b). The guaranteed amount
after all would satisfy § 602(a) by itself. “[T]he canon against surplusage is strongest when an
interpretation would render superfluous another part of the same [regulatory] scheme.” Marx v.
Gen. Revenue Corp., 568 U.S. 371, 386 (2013); see also Pulsifer v. United States, 601 U.S. 124,
143 (2024). To give § 604(b) room to operate in a meaningful way, § 602(a) must apply only to
those paid a true weekly salary.
What text and context suggest, Helix Energy Solutions Group v. Hewitt confirms. 598
U.S. 39 (2023). There, the company guaranteed the employee a minimum amount ($963) for
any week in which he performed work, which happened to be his daily rate. See id. at 47. If he
worked for two days, not just one, he received double that amount ($1,926); if three days, he
received triple that amount ($2,889); and so on. See id. Did that employee “‘receive his full
salary for any week’ in which he work[ed],” the Court asked? Id. (quotation omitted). No, it
answered, because a person is paid a salary under § 602(a) only if “he gets a ‘predetermined
amount’ that cannot be changed ‘because of the number of days or hours’ he labors”—that is, if
he receives “what ordinary people think of as a salary.” Id. at 54 n.5. What the employee in
Helix received was “a high day rate,” but not “a salary (of $963 or any other amount) because his
[bi]weekly take-home pay could be as little as $963 or as much as $13,482, depending on how
many days he worked.” Id. It made no difference to the Court’s conclusion that the employee in
Helix (who supervised a dozen workers on an oil rig) earned over $200,000 per year. Id. The
salary-basis requirement applied all the same.
How does all of this apply here? This case could be captioned Helix II. Pickens, just like
the employee in Helix, was guaranteed payment for a single day’s work. But he was not paid a
salary. Unlike a weekly rate, which compensates an employee for a week’s work, no matter the
number of hours worked, the rate Pickens received compensated him for either an hour’s work or
eight hours’ work. See Gentry, 102 F.4th at 725; see also 2004 Final Rule, 69 Fed. Reg. at
22,177 (distinguishing salaried employees, paid “for the general value of services performed,”
from employees “paid by the hour or task”). Pickens’ eight-hourly “salary” did not come close

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to compensating him for his regular 52-hour workweek. Because the company did not pay
Pickens a “full salary for any week in which” he “perform[ed] any work,” and instead paid him
“with[] regard to the number of . . . hours worked,” it did not pay him on a salary basis under
§ 602(a). 29 C.F.R. § 541.602(a)(1). His supposed “salary” of $800—for one day’s work—
simply did not count as a salary under this provision. It is no more appropriate for Hamilton-
Ryker to sidestep Helix based on its use of eight hours as the weekly salary than it would be to
use 480 minutes as the basis for its weekly salary.
C.
Hamilton-Ryker objects to this conclusion on several fronts. It starts with text, with what
it perceives as the ordinary meaning of “weekly basis.” True enough, as Hamilton-Ryker
suggests, someone might well use “on a weekly basis” to mean simply “once per week.” But
that is not always true. In some contexts, “on a weekly basis” can mean not only that an activity
occurs once per week, but also that the week serves as the fundamental unit around which the
activity is structured. (Hence the “predetermined amount for rent” example above.) To figure
out which meaning governs depends on context. “In common language,” as Chief Justice
Marshall reminds us, “the same word has various meanings, and the peculiar sense in which it is
used in any sentence is to be determined by the context.” Cherokee Nation v. Georgia, 30 U.S.
(5 Pet.) 1, 19 (1831). Here, for the reasons just given, the relevant terms and the company they
keep suggest that a “predetermined amount” paid “on a weekly basis” in the context of a “salary”
is a week’s pay.
Hamilton-Ryker maintains that the word “salary” is irrelevant, and that we must look at
the words of the definition alone. But it is a “fallacy,” as Justice Scalia once explained, “to
assume that once defined,” the defined word “loses any significance, and it is only the definition
that matters.” Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687,
718 (1995) (dissenting op.) (emphasis omitted). “In settling on a fair reading of a statute” or
regulation, “it is not unusual to consider the ordinary meaning of a defined term, particularly
when there is dissonance between that ordinary meaning and the reach of the definition.” Sackett
v. EPA, 598 U.S. 651, 672 (2023) (quoting Bond v. United States, 572 U.S. 844, 861 (2014)).
The definition advanced by Hamilton-Ryker—of a “weekly salary” as any weekly payment, big

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or small—creates precisely this dissonance. Any uncertainty about the point is relieved by Helix.
It emphasized over, 598 U.S. at 51–52, and over, id. at 54, and over again, id. at 55 n.5, that the
conventional meaning of “salary” could not be eclipsed by reference to isolated snippets of
words shorn of the context in which they appear and the term that the definition purports to
define.
It is true that a salary under the regulations may be “all or part of [an] employee’s
compensation,” 20 C.F.R. § 541.602(a) (emphasis added), and that an employer thus may pay a
salaried employee “additional compensation without losing the exemption,” id. § 541.604(a).
But this contention takes us back to the threshold question whether Pickens is paid a salary at all.
See Helix, 598 U.S. at 54 n.5. The examples in § 604—the second approach to the salary test—
confirm as much. It says that an employer may provide a salaried employee with a “commission
on sales,” “a percentage of . . . profits,” or hourly pay for “hours worked . . . beyond the normal
workweek.” Id. § 541.604(a) (emphasis added). This example, and the others too, conform with
the principle that an employee is not salaried if he is paid based on a fixed hourly rate for hours
worked within the normal workweek. Pickens’ hourly rate (paid on average for 52 hours a week)
cannot fairly be described as merely “additional compensation” to his eight-hourly “salary.”
Hamilton-Ryker might have paid him weekly, but that did not make the arrangement a weekly
salary. Cf. Helix, 598 U.S. at 53.
Hamilton-Ryker claims that Helix offers less than meets the eye. The employer in Helix,
it is true, described its compensation scheme as one based on a daily rate, id. at 47–48, rather
than a “weekly guarantee” based on an employee’s first day at work with additional payments
for every day worked thereafter. But Hamilton-Ryker provides no good reason why that
distinction should make a difference. The Court in Helix told employers that they could “come
into compliance with the salary-basis requirement . . . in either of two ways”: “[A]dd to” an
employee’s “per-day rate a weekly guarantee that satisfies § 604(b)’s conditions” or “convert [an
employee’s] compensation to a straight weekly salary for time he spends on the” job. Id. at 60.
The Court left no room for a secret third option, in which an employer could evade the Act
merely by calling the per-day rate an employee receives for his first day at work each week his
“weekly salary.” No surprises there. As Justice Frankfurter once wrote, the Court’s “decisions

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have made one thing clear about the Fair Labor Standards Act: its applicability is not fixed by
labels that parties may attach to their relationship.” Powell v. U.S. Cartridge Co., 339 U.S. 497,
528 (1950) (dissenting op.). What matters is “economic reality,” not form. Goldberg v.
Whitaker House Co-op., Inc., 366 U.S. 28, 33 (1961); see also, e.g., Keller v. Miri Microsystems
LLC, 781 F.3d 799, 804–05 (6th Cir. 2015). The economic reality of Hamilton-Ryker’s
compensation scheme is precisely the same as the scheme at issue in Helix, a system in which
each employee’s pay packet turns solely on the number of days he works each week. The same
approach sensibly applies today.
Hamilton-Ryker maintains that this interpretation focuses too much on purpose and too
little on text. But “words are given meaning by their context, and context includes the purpose
of the text. The difference between textualist interpretation and so-called purposive
interpretation is not that the former never considers purpose. It almost always does,” but “the
purpose must be derived from the text.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW
56 (2012). As in Helix, our interpretation does just that. It allows us to identify true executives,
administrators, and professionals on the ground that a true salary shows that an employee has
“discretion” to “manag[e] [his] time and [his] activities.” Kinney, 994 F.2d at 11. Hamilton-
Ryker’s interpretation does nothing of the sort. What point would there be in a regulatory
scheme that handled this case and Helix differently? The only difference between the two is the
label applied to each employee’s first day of pay. To allow such easy evasion would make little
sense, and much mischief. It would even open up the regulation—and its definition of salary—
to the (fair) challenge that it falls outside the “zone of reasonableness” within which an agency
must act. FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021).
Wilson v. Schlumberg Technology Corp. is not to the contrary. 80 F.4th 1170 (10th Cir.
2023). That employer provided equipment, expertise, and technical support to oil and gas
companies seeking to drill new wells. See id. at 1173. At issue was the status of one of its
engineers, who received a fixed biweekly payment of $924 and additional hourly pay for time
spent with a customer (if on standby, $102.50 per hour, and if on a rig, $205 per hour). See id.
The engineer was not invariably at customers’ wells. Even in his busiest year on the job, he
averaged less than four hours a week on a rig and fifteen minutes a week on standby. See id.

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The Tenth Circuit concluded that the engineer received a salary under § 602(a) because his “base
pay” ($924 biweekly) was not “computed on an hourly, daily, or shift basis.” Id. at 1176. We
have no need to embrace or reject Wilson today. It suffices to say that this case differs from that
one in an important respect, one flagged by Wilson itself. Here, in “stark contrast” to Wilson,
where the plaintiff received a base payment unrelated to the number of hours worked,
supplemented by particular performance-based incentives (much like a commission), all of
Pickens’ pay was computed on the same “hourly basis.” Id. at 1179 n.4. The two cases differ in
material ways, as the Fifth Circuit recognized in Gentry. 102 F.4th at 724–25.
Hamilton-Ryker claims that it would be impracticable to require its compensation scheme
to meet the demands of § 604(b). Why? Because, Hamilton-Ryker says, no one can explain how
it “could have ensured Pickens’ . . . weekly salar[y]” would be “roughly equivalent to [his] usual
earnings when [his] hours fluctuated” as much as they did. Second Br. 29 (quotation
omitted). The first problem with this argument is that “even the most formidable policy
arguments cannot overcome a clear textual directive.” Helix, 598 U.S. at 59 (quotation omitted).
The second problem is that the argument is not that formidable. The regulations are designed to
ensure that employees are guaranteed either (1) “a true salary,” like the compensation received
by true executives, administrators, and professionals, or (2) “overtime.” Id. at 60. Hamilton-
Ryker’s preferred approach—“neither to pay employees a true salary nor to pay them
overtime”—is one that the salary-basis requirement takes “off the table.” Id. Complying with
the Act “may well increase costs,” id., but that is a concern “properly addressed to Congress, not
this Court,” SAS Inst., Inc. v. Iancu, 584 U.S. 357, 368 (2018). Because the company did not pay
Pickens a salary, it may not claim the Act’s exemption.
In a variation on this theme, Judge Murphy worries that our approach will be unworkable
for a different reason—that courts will not know how to “decide what qualifies as an employee’s
‘regular’ workweek” for which the employee must be compensated. Dissent at 31. But courts
already do just that as a result of § 604(b), which requires employers to guarantee an amount
“roughly equivalent” to how much an employee earns in his “normal scheduled workweek.” 29
C.F.R. § 541.604(b). As Helix tells us, courts may not forgo that requirement merely on the
ground that the employee has an irregular work schedule. 598 U.S. at 60. If Hamilton-Ryker

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does not wish to “convert [Pickens’] compensation to a straight weekly salary for time he spends
on” site, it is free to keep the payment scheme as it is. Id. But it may not do so by depriving him
of overtime.
Judge Murphy separately claims our interpretation generates a conflict among the
examples listed in § 604(a), each of which specifies a kind of “additional compensation” an
employer may pay a salaried employee. But we do not see any conflict. A salary, as explained,
must cover an employee’s regular work. Section 604(a)’s examples of additional compensation
fit that mold. They reflect either performance-based incentives that supplement a standard salary
(a “commission” and “a percentage of . . . profits”) or overtime (hourly pay for “hours worked
. . . beyond the normal workweek”). 29 C.F.R. § 541.604(b).
We appreciate Judge Murphy’s concerns and agree that this would be a harder case
without Helix. But in the aftermath of Helix, its reasoning, and its emphasis on customary
understandings of “salary,” we think the employee has the better side of the arguments. In
particular, the Court emphasized how the payment plan at issue, like the one here, had little in
common with the traditional understanding of a salary. It said: “In demanding that an employee
receive a fixed amount for a week no matter how many days he has worked, § 602(a) embodies
the standard meaning of the word ‘salary.’” 598 U.S. at 51. And it said: “[T]he concept of [a]
‘salary’ is linked, as a matter of common parlance, to the stability and security of a regular
weekly, monthly, or annual pay structure.” Id. at 52 (quotation omitted). And it said once more:
“A worker paid by the day or hour—docked for time he takes off and uncompensated for time he
is not needed—is usually understood as a daily or hourly wage earner, not a salaried employee.”
Id. In this context, the language of the regulation and the Court’s reasoning favor, if not compel,
our interpretation.
IV.
Hamilton-Ryker switches gears, turning to the validity of the regulations themselves.
Even if the salary-basis test created by the regulations supports Pickens, the company claims that
the regulations exceed the scope of the Secretary’s permissible authority under the Act.

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A few words are in order at the outset about our approach to this claim and about implied
and express delegations of power from Congress to federal agencies. The ancien régime of
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. treated “ambiguous” statutes as
“implicit” delegations of authority to agencies, which had final authority to “fill any gap[s]” in
the statute with “reasonable” interpretations. 467 U.S. 837, 843–44 (1984) (quotation omitted).
Loper Bright Enterprises v. Raimondo rejected that “fiction.” 603 U.S. 369, 404 (2024). A
statutory ambiguity “is not a delegation to anybody,” the Court explained, meaning that judges
could not “defer” to an agency’s interpretation whenever they faced an unclear statute. Id. at
400. They must instead do what judges do: arrive at their own “independent judgment” about
what the statute means. Id. at 412.
In doing away with deference, however, Loper Bright did not do away with discretion.
See, e.g., Gary Lawson, “Then What?”: A Framework for Life Without Chevron, 60 WAKE
FOREST L. REV. (forthcoming 2025) (manuscript at 47–48). As the Court explained, it will
sometimes be the case that “the best reading of a statute is that it delegates discretionary
authority to an agency.” 603 U.S. at 395. That is not the product of ambiguity. It is the product
of “broad and open-ended” grants of authority under the heading of “terms like ‘reasonable,’
‘appropriate,’ ‘feasible,’ [and] ‘practicable,’” Kisor v. Wilkie, 588 U.S. 558, 632 (2019)
(Kavanaugh, J., concurring in the judgment), all of which are incapable of precise definition not
because they are ambiguous, but because they unambiguously convey discretion. See, e.g.,
Donald L.R. Goodson, Discretion Is Not (Chevron) Deference, 62 HARV. J. ON LEGIS. 12, 16–17
(2024); see also Brett M. Kavanaugh, Book Review, Fixing Statutory Interpretation, 129 HARV.
L. REV. 2118, 2152–54 (2016). An “express and clear conferral of authority” to an agency “does
not rest on Chevron’s fiction” at all. Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261, 286 (2016)
(Thomas, J., concurring). It rests on an express delegation of power to an agency.
What should a court do, then, when asked to review whether an agency has permissibly
exercised delegated discretion? Loper Bright tells us. A court plays its part by (1) “recognizing
constitutional delegations,” (2) “fixing the boundaries of the delegated authority,” and
(3) “ensuring the agency has engaged in reasoned decisionmaking within those boundaries.”
603 U.S. at 395 (quotation omitted). A court must ensure that the statute contains an “intelligible

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principle” and is not an impermissible delegation of legislative power to an executive branch
agency. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); see also 5 U.S.C.
§ 706(2)(B) (court must set aside agency actions that are “contrary to constitutional . . . power”).
It must determine the scope of the agency’s discretion under the statute by setting out the task
that the agency must perform. Loper Bright, 603 U.S. at 395; see also 5 U.S.C. § 706(2)(C)
(court must set aside agency actions “in excess of statutory jurisdiction [or] authority”). And it
must ensure that the agency’s action is both “reasonable and reasonably explained.” Prometheus
Radio Project, 592 U.S. at 423; see also 5 U.S.C. § 706(2)(A) (court must set aside agency
actions that are “arbitrary [or] capricious”). Through it all, we must decide for ourselves
“whether the law means what the agency says.” Loper Bright, 592 U.S. at 392 (quotation
omitted).
In sum, then, not all agency actions are alike. In some cases, a statute gives an agency no
room at all to maneuver, leaving us with the responsibility to honor the statute’s “single, best
meaning,” “fixed at the time of enactment,” whether the agency has the same view or not. Id. at
400 (quotation omitted). But in other cases, a statute delegates authority to an agency to define
general terms in the statute. Id. at 394–95. Under those circumstances, we “respect the
delegation” by “fixing the boundaries of the delegated authority” based on our independent view
of the statute and “ensuring that the agency acts within” those boundaries. Id. at 395, 413
(quotation omitted).
That brings us to this case. The Act, recall, contains an exemption from the wage-and-
hour requirements for those employees “in a bona fide executive, administrative, or professional
capacity . . . as such terms are defined and delimited from time to time by regulations of the
Secretary.” 29 U.S.C. § 213(a)(1). All agree that this language expressly delegates discretionary
authority to the Secretary of the Department of Labor. And no one in this case contends that this
delegation exceeds Congress’s constitutional authority because it lacks an intelligible principle.
What separates the parties is the scope of that authority and whether the Secretary exercised it in
a reasonable way. Cf. Loper Bright, 603 U.S. at 413. If the Secretary has “regulate[d] subject to
the limits imposed by [the] term or phrase” at issue, we will uphold the regulations. Id. at 395.

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Start with scope. Congress gave the Secretary “broad authority” to regulate. Auer v.
Robbins, 519 U.S. 452, 456 (1997). It gave the Secretary two powers, not one, in this instance.
“Define” means to state precisely what something means. 2 OXFORD ENGLISH DICTIONARY,
supra, at 89 (def. 6b); WEBSTER’S DICTIONARY, supra, at 688 (def. 4). But “delimit” means
something else—to fix or mark boundaries or limits. 2 OXFORD ENGLISH DICTIONARY, supra, at
163; WEBSTER’S DICTIONARY, supra, at 692. Congress thus gave the Secretary the power not
only to say what it means to work in a “bona fide executive, administrative, or professional
capacity,” but also to establish a workable method for applying this exemption in practice.
The regulations at issue do just that. They first come within the Secretary’s power to
define, as they help to clarify whether a person works in a “bona fide executive, administrative,
or professional” capacity. In 1938, as today, such roles were characterized not solely by the type
of work performed, but by a person’s relative status within a workplace. An executive, for
instance, managed an organization’s affairs, WEBSTER’S DICTIONARY, supra, at 892 (def. 2); an
administrator ran its day-to-day operations, 1 OXFORD ENGLISH DICTIONARY, supra, at 118 (def.
1); and a professional exercised learned judgment, id. at 1428 (def. 3). Each role required a
degree of independence and discretion. But hourly pay was anathema to both concepts then and
is anathema to both of them now. While the relevant regulations are framed in terms of a
“salary” status as opposed to “non-hourly” status, that justification remains. Only the security of
a steady salary allows an employee to “decide for himself” how to manage his time and
activities. Brock, 84 F.2d at 184; see also Kinney, 994 F.2d at 11. That explains why the
Secretary concluded in 1940 that true executives, administrators, and professionals possess
“authority” and “prestige” incompatible with hourly pay, Harold Stein, U.S. Dep’t of Lab.,
Report at 19, 25 (Oct. 10, 1940), and why he reiterated that conclusion in 1949, finding that
“bona fide executive, administrative, and professional employees are almost universally paid on
a salary or fee basis,” Harry Weiss, U.S. Dep’t of Lab., Report at 24 (June 30, 1949).
The relevant regulations also come within the Secretary’s power to delimit, as they
establish a workable and reasonable method for applying the exemption in practice. It often is
not obvious whether an employee works in an executive, administrative, or professional capacity
based on their duties or their job title alone. Think of the supervisor who occasionally helps on

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the line. Or the janitor who sometimes picks which rooms his colleagues should clean but
mostly works on his own. Or the pipe inspector whose sole job is to inspect pipes. For better or
worse, “lines are to be drawn.” Kirschbaum v. Walling, 316 U.S. 517, 523 (1942).
It made good sense to draw one of those lines based on an employee’s salary—an
objective metric, readily understood, easily applied (usually), and perhaps “the best single
indicator of the degree of importance involved in a particular employee’s job.” Weiss Report at
9. That is why the Secretary concluded in 1940 that there was “surprisingly wide agreement”
among employers and employees alike that the salary criterion was a “valuable and easily
applied index to the ‘bona fide’ character of the employment for which the exemption is
claimed.” Stein Report at 19. And that is why the criterion has endured for more than 80 years.
“[T]he salary tests . . . have amply proved their effectiveness in preventing the misclassification
by employers of obviously nonexempt employees, thus tending to reduce litigation” and
“simplif[y] enforcement.” Weiss Report at 8 (so concluding in 1949); see also, e.g., 2004 Final
Rule at 22,165 (same). For regulations that cover hundreds of millions of workers in all sectors
of our Nation’s economy, that is no mean feat. Under these circumstances, we cannot say that
the Secretary has exceeded “the boundaries of the delegated authority.” Loper Bright, 603 U.S.
at 395 (quotation omitted).
That conclusion should not come as a surprise. While the fortunes of implied interpretive
deference under Chevron have risen and fallen in the courts, the Secretary’s exercise of express
delegated authority to define executive, administrative, and professional employees has remained
stable in the courts. Since the adoption of salary tests in 1940, every court of appeals to consider
the question has upheld their validity. The Fifth Circuit did so just a few months ago. Mayfield
v. U.S. Dep’t of Lab., 117 F.4th 611, 617–19 (5th Cir. 2024). Others did so from 1944 onward.
See Fanelli v. U.S. Gypsum Co., 141 F.2d 216, 218 & n.3 (2d Cir. 1944); Wirtz v. Miss.
Publishers Corp., 364 F.2d 603, 608 (5th Cir. 1966) (Burger, J.); Craig v. Far W. Eng’g Co., 265
F.2d 251, 259 (9th Cir. 1959); Walling v. Yeakley, 140 F.2d 830, 833 (10th Cir. 1944); Prakash
v. Am. Univ., 727 F.2d 1174, 1177–78 (D.C. Cir. 1984).
We considered this issue almost 80 years ago. In Walling v. Morris, we deemed “[t]he
validity and binding effect” of the Secretary’s salary tests “well established,” and held that the

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Act protected the employees in that case because they were “not employed on a salary basis, one
of the essential requirements” set by regulation. 155 F.2d 832, 836 (6th Cir. 1946). True, the
Supreme Court vacated the decision on other grounds. Morris v. McComb, 332 U.S. 422 (1947).
But we return to our earlier conclusion all the same.
Hamilton-Ryker asks us to form a minority of one. It objects that the relevant section of
the Act does not mention salaries. But neither does it mention job duties, Hamilton-Ryker’s
preferred coin of the realm. True, Congress could have expressly stated that the Secretary may
use an employee’s compensation to determine his status. But it also could have directed the
Secretary merely to “list qualifying duties” or “specify required tasks.” Congress chose not to
specify every aspect of what makes a position “bona fide executive, administrative, or
professional” in character. That is precisely why it delegated authority to the Secretary to define
and delimit those terms. Congress chose not to unduly limit the Secretary’s options in
implementing the exemptions, and neither will we.
Hamilton-Ryker responds that other provisions in the Act limit exemptions to those who
receive a “weekly salary,” suggesting Congress would have done the same here had it wanted
salaries to factor into the analysis. Second Br. 39–40 (quoting 29 U.S.C. § 213(a)(19)). But
these other exemptions long postdate the Act’s passage. When Congress first passed the Act, it
did not predicate any of the exemptions on an employee’s compensation. Fair Labor Standards
Act of 1938, Pub. L. 75-718, § 13, 52 Stat. 1060, 1067–68. That changed only when Congress
amended the Act. See, e.g., Save America’s Pastime Act, Pub. L. No. 115-141, § 201(a)(2), 132
Stat. 348, 1126–27 (2018) (codified at 29 U.S.C. § 213(a)(19)) (exempting baseball players who
earn a “weekly salary”). While we often presume that Congress acts “intentionally and
purposely” when it “includes particular language in one section of a statute but omits it in
another section of the same Act,” Brown v. Gardner, 513 U.S. 115, 120 (1994) (quotation
omitted), that presumption falls apart when the laws at issue were enacted 80 years apart. How
the 115th Congress changed the Act in 2018 says little about what the 75th Congress enacted in
1938.
Hamilton-Ryker objects that the Secretary’s salary-basis rules exclude some employees
“who undisputedly perform exempt executive, administrative, or professional job duties.”

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Second Br. 42–43. But the Tenth Circuit answered that critique in 1944: “Exclusion usually
results when we descend from the general to the particular, and Congress must have realized that
specific definition and delimitation which would result in certainty of application would of
necessity exclude some employees who might otherwise be regarded as within the general
phrases used by Congress.” Yeakley, 140 F.2d at 832. We cannot put it better ourselves. It
might well be the case that the lines drawn by the Secretary are imperfect, especially on the
margins. But that is in the nature of drawing lines. We ask only that the Secretary exercise
“reasoned” judgment, not perfect judgment. Loper Bright, 603 U.S. at 395 (quotation omitted).
That happened here.
Hamilton-Ryker contends that, even if we uphold the Secretary’s general rule that exempt
employees must be paid on a salary basis, we should invalidate § 604(b)’s requirement that a
guaranteed hourly payment must bear a reasonable relationship to an employee’s actual weekly
earnings. Section 604(b), recall, gives employers another way to deem their employees exempt.
Even if an employee isn’t paid a true salary under § 602(a), it says, an employee is exempt if his
employer guarantees him a certain amount each week (currently at least $455) and a “reasonable
relationship” exists between the promised amount and the amount he usually earns. 29 C.F.R.
§ 541.604(b). What § 604(b) does is increase an employer’s flexibility, so that it may rely on
hourly or daily pay (as Hamilton-Ryker would like to do), but in a way that is “consistent with
the salary basis concept.” Helix, 598 U.S. at 47 (quotation omitted). It ensures “a steady stream
of pay, which the employer cannot much vary and the employee may thus rely on week after
week.” Id. Section 604(b), in other words, outlines how even an hourly or daily employee might
also be paid on a salary basis. The reasonable-relationship condition is a “reasoned” part of that
explanation and thus withstands Hamilton-Ryker’s challenge. Loper Bright, 603 U.S. at 395
(quotation omitted).
V.
In view of our disposition of Pickens’ appeal, we need not reach Hamilton-Ryker’s cross-
appeal, which focuses on whether the district court was required to reject not only Pickens’ claim
but also the claims of his former coworkers who opted into this lawsuit. All we decide today is
that Pickens is entitled to summary judgment on his individual claim. We leave for the district

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court to decide in the first instance whether Pickens’ action ought to proceed on a collective basis
and, if so, how our decision bears on the claims of his coworkers.
For these reasons, we reverse and remand.

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__________________
CONCURRENCE
__________________
KETHLEDGE, Circuit Judge, concurring. I write briefly to point out that I do not see
any “regulatory ambiguity” in § 602(a), Dissent at 23, under the law as it comes to us here. We
do not interpret phrases in isolation, and in my view—for the reasons stated in Chief Judge
Sutton’s opinion—the best interpretation of § 602(a) is the one we adopt today.

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____________________________
CONCURRENCE / DISSENT
____________________________
MURPHY, Circuit Judge, concurring in part and dissenting in part. I agree with my
colleagues that issue preclusion does not apply in this case. I also agree with them that
Hamilton-Ryker IT Solutions structured Lynwood Pickens’s compensation in a strange way
solely to exempt Pickens from the overtime requirements of the Fair Labor Standards Act.
Unlike my colleagues, though, I believe that an unambiguous regulation gave Hamilton-Ryker
every right to do so. In that respect, Hamilton-Ryker’s compensation package resembles a
company’s lawful transaction designed solely to avoid its taxes. I thus find what we have said in
the tax-law context relevant to this labor-law dispute: Whether the Secretary of Labor exempted
Hamilton-Ryker’s compensation package through an “oversight makes no difference. It’s what
the law allowed.” Summa Holdings, Inc. v. Comm’r, 848 F.3d 779, 786 (6th Cir. 2017). And if
the Secretary does not like this result, she “should fix the problem” by amending the regulation.
Id. at 790. Because the majority sees regulatory ambiguity where I see none, I respectfully
dissent.
The Fair Labor Standards Act exempts several types of employees from its overtime
rules. See 29 U.S.C. § 213(a). Its exemptions cover “any employee employed in a bona fide
executive, administrative, or professional capacity” as these “terms are defined and delimited
from time to time by regulations of the Secretary” of Labor. Id. § 213(a)(1). To implement this
exemption, the Secretary has issued a special regulation for highly compensated employees. See
29 C.F.R. § 541.601. Over the years, the Secretary has increased the income amounts that this
regulation requires (and district courts have vacated some of the changes). See Defining and
Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and
Computer Employees, 84 Fed. Reg. 51230, 51232–35 (Sept. 27, 2019); Texas v. U.S. Dep’t of
Lab., __ F. Supp. 3d __, 2024 WL 4806268, at *26 (E.D. Tex. Nov. 15, 2024). Because the
evolving income requirements do not matter here, I will refer to the amounts put in place by
amendments from 2019.

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To show that an employee fell within the exemption for highly compensated employees
after these 2019 amendments, an employer needed to establish three basic things. 29 C.F.R.
§ 541.601 (2020). First, the employee must have had a “total annual compensation” of “at least
$107,342[.]” Id. § 541.601(a)(1). Second, this total compensation must have “include[d] at least
$684 per week paid on a salary or fee basis” (as the phrases “salary basis” and “fee basis” are
defined in other regulations). Id. § 541.601(b)(1). Third, the employee must have “customarily
and regularly perform[ed] any one or more of the exempt duties or responsibilities of an
executive, administrative, or professional employee[.]” Id. § 541.601(c). Nearby regulations
identify the duties that each of these employees must undertake. See id. §§ 541.100, -.200, -.300.
The exemption for highly paid employees also clarifies that it covers only “office or non-manual
work” and thus excludes laborers “no matter how highly paid they might be.” Id. § 541.601(d).
Pickens does not challenge that his job with Hamilton-Ryker met most of this
exemption’s elements. As for the total-compensation element, Pickens made $207,876.39 in
2018 and $109,752.67 in the three months he worked for the company in 2019 (amounts well
above the sum required by the 2019 amendments: $107,342 per year). As for the duties element,
Pickens does not dispute that his job included functions listed in the executive, administrative, or
professional exemption (although the parties do not identify these functions with precision). As
for the weekly-pay element, Pickens does not dispute that Hamilton-Ryker guaranteed him $800
for every week that he worked (an amount above the $684 weekly sum that the 2019
amendments required).
So why does Pickens claim that he did not qualify as a highly compensated employee?
He alleges that Hamilton-Ryker did not pay its weekly guarantee of $800 “on a
salary . . . basis[.]” Id. § 541.601(b)(1). The Secretary has defined the phrase “salary basis” in a
nearby section: § 541.602 (or what I will call “§ 602”). Section 602’s key language explains that
an employer pays an employee on a “salary basis” if the employee “receives” a guaranteed
“predetermined amount” “on a weekly” “basis” as “part of the employee’s compensation”:
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

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compensation, which amount is not subject to reduction because of variations in
the quality or quantity of the work performed.
Id. § 541.602(a). The next paragraph then adds that the employee “must receive the full salary
for any week in which the employee performs any work” but that employees “need not” receive
this salary “for any workweek in which they perform no work.” Id. § 541.602(a)(1).
In my view, this regulation’s unambiguous language compels us to hold that it covers
Pickens’s (unusual) compensation scheme. Here are the basics of that scheme: For every week
that Pickens performed any work, he received a “guaranteed” $800. Letter, R.97-19, PageID
1701. Pickens also received an additional $100 for every hour that he worked after eight hours
in a week. Id. In effect, Hamilton-Ryker paid 20% or so of Pickens’s compensation through a
weekly sum and the remaining 80% or so through an hourly wage. If he worked only a few
minutes in every week of the year, then, he would receive $41,600 ($800*52). On top of this
weekly sum, he would also receive a wage for every hour worked over eight hours in any one
week.
Pickens’s $800 payment satisfies every part of § 602(a)’s “salary basis” definition. Did
Pickens receive a “predetermined amount”? 29 C.F.R. § 541.602(a). Yes, Hamilton-Ryker
identified the $800 when it hired him. Was this $800 paid “on a weekly[] or less frequent
basis”? Id. Yes, Hamilton-Ryker “paid” the $800 “by the week” rather than by the hour or by
the day. Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39, 54 (2023). Was this sum “subject
to reduction because of variations in the quality or quantity of the work performed” during that
week? 29 C.F.R. § 541.602(a). No, Pickens received this amount if he performed any work—
whether he worked one minute or ninety hours and whether he spent that time daydreaming
about the weekend or solving a workplace crisis. Does it matter that Pickens received more than
this $800 whenever he worked more than eight hours in a week? No, the regulation says that the
$800 salary need only be “part of the employee’s compensation,” so the employer can pay the
employee other amounts. Id. Does it matter that Hamilton-Ryker refused to pay the $800 for
any week in which Pickens performed no work? No, he qualified for the exemption even if he
had to work at least some amount to get the salary. Id. § 541.602(a)(1).

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My colleagues dispute only one part of this analysis. They hold that Pickens was not
paid the $800 “on a weekly[] or less frequent basis[.]” Id. § 541.602(a). Why? They interpret
the phrase “on a weekly . . . basis” to mean that the “predetermined amount” referred to in
§ 602(a) must exclusively reimburse the employee “‘for the general value of services
performed’” over the whole week. Maj. Op. 7 (citation omitted). As I understand their position,
an employer pays an employee an amount “on a weekly basis” only if the employer does not pay
other amounts to the employee for the same work. And Hamilton-Ryker’s compensation
package flunks this exclusivity requirement because Pickens received a lot more than the $800
guaranteed weekly amount. He also received the $100 hourly wage for every hour that he
worked over eight hours.
I disagree with this interpretation because I cannot find any exclusivity idea in the phrase
“on a weekly basis.” And nothing in the Supreme Court’s Helix decision or the broader
regulatory regime convinces me that we should depart from that phrase’s unambiguous meaning.
Text. To start, I see no fair reading of the phrase “on a weekly basis” in which it can
include an exclusivity requirement that bars other pay for the same work. I did not find the
various dictionary definitions of “basis” all that helpful, but I agree that the most apt one is
“foundation.” Webster’s New International Dictionary of the English Language 227 (2d ed.
1934); see Helix, 598 U.S. at 52. Next, “weekly” when used as an adjective means “[c]oming,
happening, or done, every week” as in “a weekly payment, gazette, caller.” Webster’s, supra, at
2896. So putting the words together, the “foundation” of the predetermined payment must be a
“week” or “every week.” And since this entire prepositional phrase (“on a weekly basis”) acts as
an adverb, I find the adverbial definition of “weekly” even more telling: “Once a week.” Id.
Pickens’s $800 fits this definition. He received that amount “on a weekly basis” because
Hamilton-Ryker paid this amount once for every week that Pickens worked (no matter how
many hours he worked in the week). So a week—not an hour or a day—represents the
“foundation” for this payment.
Frankly, though, I find these definitions less meaningful than ordinary usage. As the goal
of interpretation, we must identify what the phrase “would mean in the mouth of a normal
speaker of English” in the “circumstances in which [the phrase is] used.” Oliver Wendell

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Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899). And my
reading best matches how ordinary people use this phrase. If an employer tells its employees
that they must attend a computer training “on a weekly basis,” an ordinary person would
interpret this phrase to mean that the employees must attend this training (of an unidentified
length) once per week. Under my colleagues’ view, by contrast, the employer would seemingly
have commanded the employees to attend the training every working hour of the week (to the
exclusion of other work). Or if a Cleveland newspaper says that a certain television show will
“air on a weekly basis,” the newspaper means that an episode will play once a week. Patrick
Cooley, Trailer Gives Marvel Fans First Look at ‘Inhumans’ TV Show, cleveland.com, June 29,
2017, 2017 WLNR 19986377. The newspaper does not mean that the series will run nonstop
throughout the week to the exclusion of all other shows. Or if a Houston newspaper suggests
that “objects are discovered almost on a weekly basis that could potentially pass close to the
Earth,” it means that scientists discover these new objects each week. Sondra Hernandez, NASA:
Asteroid 2024 YR4 Not a Threat to Earth, Houston Chronicle, March 4, 2025, 2025 WLNR
5162276. It does not mean that they are constantly discovering new objects nonstop throughout
the week.
To be sure, my colleagues rightly point out that we must place the phrase in its context.
“Context is key to meaning.” United States v. Hill, 963 F.3d 528, 530 (6th Cir. 2020). And here,
that context is not weekly trainings, shows, or extraterrestrial objects, but weekly payments. If
anything, though, the once-per-week definition fits that context even better. An employee’s pay
has both a dollar component and a time component. An employee might make $100 per hour,
$4,000 per week, or $208,000 per year. And $100 per hour looks a lot different than $100 per
day. Stating the dollar figure alone thus tells us little about the employee’s pay until we know
how regularly the employee earns the identified dollar amount. So when a text links a monetary
element to a time element, the time element most naturally refers to how regularly the employee
earns the dollar element. And “on a weekly basis” serves this precise function in § 602(a).
In contrast, I do not see how the phrase can contain my colleagues’ exclusivity element.
Suppose an employer agrees to pay an employee both $1,000 “on a weekly basis” and $50 “on
an hourly basis.” Under my colleagues’ view, the employer has not offered the $1,000 “on a

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weekly basis” because it has sweetened the pot with the extra hourly pay. Nobody would draw
that conclusion. Or take the majority’s rent analogy. If tenants sign a contract indicating that
they must pay a predetermined amount in rent “on a weekly basis,” I agree the tenants would
believe that they must pay no more than the identified sum for each week they reside at the
home. But that exclusivity element does not arise from the phrase “on a weekly basis.” It arises
from the fact that the contract lacks any other terms. If a contract instead required vacationers to
pay $100 “on a weekly basis” plus $500 for each day they physically occupy a beach home, the
vacationers could not avoid the daily rent by arguing that the phrase “on a weekly basis” showed
that they did not have to pay any other amounts for the week. And here, § 602(a)’s definition of
“salary basis” makes clear that the weekly payment need not be the employee’s exclusive
compensation. It says that the predetermined amount can be only “part of the employee’s
compensation” for the employee to be paid on a salary basis. 29 C.F.R. § 541.602(a) (emphasis
added). So the text leaves no doubt that “on a weekly basis” cannot perform the role that the
majority gives it.
My colleagues respond that their view better fits the ordinary meaning of “salary” in the
abstract. Yet we must follow the unambiguous regulatory definition of “salary basis” even if its
text departs from the “ordinary meaning” of the word salary. Van Buren v. United States, 593
U.S. 374, 387 (2021) (quoting Tanzin v. Tanvir, 592 U.S. 43, 47 (2020)); see Garland v. Cargill,
602 U.S. 406, 428 n.9 (2024). To be sure, the ordinary meaning of a defined word can help
clarify ambiguity in a statutory definition of that word. Cf. Bond v. United States, 572 U.S. 844,
861–62 (2014). But I see no ambiguity in the statutory definition, including its use of “on a
weekly basis.” And courts may not use the ordinary meaning of the defined word to create
ambiguity in the word’s statutory definition. Besides, I am not sure that the ordinary meaning of
“on a weekly basis” departs from the ordinary meaning of “salary.” The word “salary” refers to
“fixed compensation regularly paid, as by the year, quarter, month, or week.” Helix, 598 U.S. at
51 (quoting Webster’s New International Dictionary 2203 (2d ed. 1949)). Hamilton-Ryker’s
guaranteed $800 sum may well fall within this definition since it qualifies as a fixed amount the
company paid Pickens by the week. See id. If employees receive a fixed amount no matter how
much they work, why does it matter that they earn extra money? Executives can receive bonuses
that tower over their salaries, but that fact would not mean they did not get paid a salary.

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In short, the salary-basis definition has one unambiguous meaning: an employer must pay
the predetermined amount each week that an employee performs work, no matter how much
work the employee performs. And Hamilton-Ryker’s $800 weekly payment to Pickens meets
this test.
Helix. The Supreme Court’s decision in Helix also does not support my colleagues’
reading of “on a weekly basis.” Start with Helix’s facts: Helix Energy Solutions Group paid
Michael Hewitt between “$963 to $1,341 per day” over his time with the company. 598 U.S. at
47 (emphasis added). So Hewitt was not paid an hourly wage because he would receive this
amount whether he worked one minute or sixteen hours in a day. But he was also not paid “on a
weekly basis” under any view of that phrase. If he worked one day a week, he would get $963
for the week. Id. If, by contrast, he worked seven days, he would get $6,741 for the week
($963*7). Id. Now compare that pay structure to Pickens’s. Pickens got the $800 if he worked
one day, two days, or all seven. He thus was paid the $800 on a weekly basis in a way that
Hewitt was not.
Turn to Helix’s reasoning: the Court read the phrase “on a weekly basis” to mean that a
“week” must be the “unit of time used to calculate” how often the employee earns the
predetermined amount that § 602(a) requires. Id. at 52. That is how I read the phrase too. And
Hamilton-Ryker’s compensation package satisfied the rule: the company used a week as the unit
for deciding how often Pickens earned the $800. Pickens did not earn the $800 every hour that
he performed work. Nor did he earn this amount every day that he performed work. Rather, he
earned the $800 every week that he performed work. His pay thus falls within Helix’s definition.
Notice how I used the verb earned in the prior paragraph even though § 602(a) says that
an employee must “receive[]” the predetermined amount each week. 29 C.F.R. § 541.602(a). In
Helix, the Court read the word “receive” to mean “earn” when rejecting the argument that the
company paid Hewitt on a weekly or less frequent basis because it distributed his paycheck
every two weeks. See 598 U.S. at 52–53. The Court reasoned that “a ‘basis’ of payment
typically refers to the unit or method for calculating pay, not the frequency of its distribution.”
Id. at 53. So “an employee paid on an hourly basis is paid by the hour, an employee paid on a
daily basis is paid by the day, and an employee paid on a weekly basis is paid by the week—

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irrespective of when or how often his employer actually doles out the money.” Id. Under this
view, too, Hamilton-Ryker paid the $800 “by the week” since Pickens earned that amount every
week that he performed any work—without regard to how often the company sent him a
paycheck. Id.
The Court’s response to Justice Kavanaugh’s dissent also matters here. The dissent
would have held that Helix paid Hewitt the then-applicable required minimum ($455) on a
weekly basis because Hewitt received a guarantee of $963 each day that he worked. Id. at 64–65
(Kavanaugh, J., dissenting). Because Hewitt earned more in a day than the regulation required
him to earn in a week, the dissent reasoned, Hewitt always received the required weekly
minimum as a practical matter. Id. The Court rejected this pragmatic reasoning with a formalist
response: Even if Helix paid Hewitt “a high day rate,” the company technically did not pay him
on a weekly basis because the guaranteed sum changed based on the number of days worked in a
week. Id. at 54 n.5.
This formalistic reasoning rebuts a distinct argument that Pickens makes. As Pickens
points out, Hamilton-Ryker determined Pickens’s $800 guaranteed weekly amount based on the
hourly wage of $100 that Pickens received for every hour that he worked after eight hours. As a
practical matter, then, Pickens was no different from an hourly employee who made $100 per
hour because he always worked more than eight hours each week. But if a formalistic reading of
§ 602(a) binds employers (as Helix holds), that formalistic reading should also bind employees.
I would not read the provision technically when it harms employers and practically when it helps
employees. And again, the company technically paid the $800 on a weekly basis because
Pickens earned that amount by the week once he worked a minute, no matter how many hours he
worked in the week. That is true even if the company’s $800 salary was effectively paying
Pickens for the first eight hours that he worked each week to match the hourly wage that he
earned after that.
More generally, why should the way in which a company chooses the fixed
“predetermined amount” matter? 29 C.F.R. § 541.602(a). Suppose a company paid an employee
a $2,400 weekly salary. And suppose internal records showed that it determined this salary by
seeking to pay the employee $60 per hour based on the expectation that the employee would

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work 40 hours a week ($60*40). Just because the company chose the weekly number based on
what it wanted to pay the employee by the hour would not make the payment an hourly wage.
As long as the company paid this amount no matter how many hours the employee worked, it
paid the employee by the week. Identical logic applies to the $800 that Hamilton-Ryker
guaranteed Pickens each week.
Structure. My colleagues’ reading of “on a weekly basis” also conflicts with a nearby
section: 29 C.F.R. § 541.604 (or what I will call “§ 604”). Section 604(a) says that “[a]n
employer may provide an exempt employee with additional compensation without losing the
exemption or violating the salary basis requirement, if the employment arrangement also
includes a guarantee of at least the minimum weekly-required amount paid on a salary basis.” 29
C.F.R. § 541.604(a) (emphasis added). If my colleagues correctly interpret “on a weekly basis”
in the salary-basis definition to prohibit an employer from paying more than the “predetermined
amount” referred to in § 602(a), § 604(a) could not authorize “additional compensation” for the
same week. Indeed, § 604(a) also gives the following example: “the exemption is not lost if an
exempt employee who is guaranteed at least $684 each week paid on a salary basis also receives
additional compensation based on hours worked for work beyond the normal workweek.”
29 C.F.R. § 541.604(a). Section 604(a) thus shows that § 602(a)’s predetermined amount can be
paid on a weekly basis even if the company pays other money for work performed during the
same week on an hourly basis. See Wilson v. Schlumberger Tech. Corp., 80 F.4th 1170, 1176–
77 (10th Cir. 2023).
To their credit, my colleagues acknowledge this issue. They thus add an exception to the
exclusivity requirement that they find in the phrase “on a weekly basis.” They say that an
employer may pay an employee more than the predetermined amount for work each week if that
added pay is for overtime rather than for a “regular week’s worth of work.” Maj. Op. 7, 12. But
I see no linguistically plausible way to read “on a weekly basis” to mean “for all the work
performed during a regular workweek.” Even apart from § 602(a)’s plain meaning, this
exception also strikes me as unworkable. How should courts decide what qualifies as an
employee’s “regular” workweek? Should they use the 40-hour week standard in America? Or
should they use an employee’s average number of hours over the past few years? And what

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happens if an employee works irregular hours? Or what about other compensation schemes?
Suppose that an employer pays a “bonus” of $20 per hour in addition to the required weekly
salary. 29 C.F.R. § 541.604(a). I would not adopt a legal rule that requires these sorts of
difficult judgment calls or that prohibits bifurcated compensation arrangements. I would instead
give “on a weekly basis” its unambiguous meaning.
My colleagues offer several structural counterpoints of their own. They first suggest that
other parts of the section that defines “salary basis” (§ 602) justify their reading. Section 602
makes clear that an employer cannot deduct from an employee’s salary for down times when it
has no work to perform if the employee is “ready, willing and able to work” during those times.
Id. § 541.602(a)(2). On the other hand, the section also identifies several “exceptions” in which
an employer can reduce an employee’s salary, including if the employee missed “one or more
full days for personal reasons, other than sickness or disability.” Id. § 541.602(b)(1). Yet these
subsections support my reading just as much as my colleagues’. Here, for example, it is
undisputed that Hamilton-Ryker still paid Pickens $800 even if it lacked work for him to perform
during parts of the week. And, although the parties have identified no evidence on the issue,
Hamilton-Ryker likely could have deducted $160 from its guaranteed $800 (the proportionate
share of $800 for a day of work) if Pickens missed a day for personal reasons. I thus fail to see
how these provisions allow us to depart from the plain meaning of “on a weekly basis.”
My colleagues next prefer their reading of “on a weekly basis” on the ground that it gives
§ 604(b) independent work to perform. That subsection allows employers to pay employees on
an “hourly, a daily, or a shift basis” if employers guarantee the minimum weekly amount and a
“reasonable relationship” connects that guaranteed weekly sum with the “amount actually
earned”:
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 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.

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29 C.F.R. § 541.604(b). According to the majority, the ordinary meaning of “on a weekly basis”
in § 602(a) would read § 604(b)’s “reasonable relationship” requirement out of the regulation.
That is, if an employer could satisfy § 602(a)’s salary-basis definition by both guaranteeing a
weekly “predetermined amount” and paying the employee an added hourly wage, the employer
would never need to show the “reasonable relationship” between the guaranteed amount and the
actual earnings that § 604(b) requires. Rather, the employer could rely simply on § 602(a).
That is a good point. Yet tension exists between these two subsections under any view.
And I would reconcile that tension like the Tenth Circuit did in Wilson. See 80 F.4th at 1176–79.
Section 602(a) covers employees who receive a “base salary” plus additional compensation paid
in any manner (including on an hourly basis). See id. at 1176. Section 604(b), by contrast,
covers employees (like Hewitt in Helix) who do not receive a base weekly salary and whose
“base pay” is instead calculated on an hourly, daily, or shift basis. Id. And here, Hamilton-
Ryker did not pay the $800 “on an hourly, a daily or a shift basis” because it paid that amount
without regard to the number of hours, days, or shifts worked in a week. 29 C.F.R. § 541.604(b).
Admittedly, this approach may make it easy for employers to avoid § 604(b)’s
reasonable-relationship requirement by making clear that they are paying a “base salary” with
“additional” hourly wages rather than a base hourly wage with a guaranteed weekly sum. And
this structural point may well have led me to read § 602(a) and § 604(b) as imposing independent
requirements that an employer must meet to satisfy the salary-basis test when the employer relies
on a mixed compensation package that includes both a salary paid on a weekly basis and a wage
paid on an hourly one. But the Supreme Court rejected that view in Helix by suggesting that an
employer could satisfy the salary-basis test by meeting either § 602(a) or § 604(b). See 598 U.S.
at 46–47, 49. Alternatively, this structural point may well have led me to agree with the majority
if I saw any ambiguity in § 602(a)’s language. But I see none. And when “[p]ut to a choice,” I
would “prefer” following the “ordinary meaning” of § 602(a) as compared “to an unusual
meaning that will avoid surplusage” in § 604(b). Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 176 (2012). After all, the “cardinal canon” (that we must
give words their unambiguous meaning) must trump all other canons (including the rule against
superfluity). Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).

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My reading of the regulation also has the benefit of avoiding a knotty statutory question
in this case. The Fair Labor Standards Act exempts employees who work “in a bona fide
executive, administrative, or professional capacity[.]” 29 U.S.C. § 213(a)(1) (emphasis added).
This text seemingly puts the focus on the duties that employees perform and does not impose any
requirements on how employers must pay these employees. Like Justice Kavanaugh, I find it at
least “questionable” whether a salary test could survive the claim that the regulations exceed the
scope of discretion that the Act grants the Secretary. Helix, 598 U.S. at 67 (Kavanaugh, J.,
dissenting); see id. at 63 (Gorsuch, J., dissenting). So the more we interpret the regulations to
impose strict salary rules, the more we open them up to serious statutory challenge. Cf. Texas,
2024 WL 4806268, at *16–25. My view that we should follow the unambiguous meaning of
§ 602(a) allows me to avoid having to confront this challenge.
I end with a precedential point. My reading undoubtedly conflicts with the Fifth Circuit’s
view in a similar case involving the same defendant. See Gentry v. Hamilton-Ryker IT Sols.,
LLC, 102 F.4th 712, 720–22 (5th Cir. 2024). But it adheres to the reasoning of the Tenth Circuit
decision in Wilson. 80 F.4th at 1175–79. Admittedly, that decision involved a far different
compensation package in which an employee received a base salary plus an hourly “rig rate” for
time spent on a rig. Id. at 1173, 1175. Still, the amount that the employee earned through his
salary ($28,812.90) fell well below the amount he earned through his rig rate ($72,150). See id.
And the court held that the employee received his salary on a weekly basis even though (like
Pickens) he did not receive his hourly wage only for work “beyond the 40-hour workweek[.]”
Id. at 1175–79 & n.4. So the existing circuit decisions on this topic already sit in tension with
each other.
Because I would affirm the district court, I respectfully dissent in relevant part.

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