Kavanaugh, J., dissenting
opinion nonetheless suggests that the two-thirds requirement may apply even to executives such as Hewitt who earn more than $100,000 per year. That is incorrect. To begin with, the introductory statement to the overtime regulations indicates that the two-thirds requirement does not apply to “highly compensated employees”—that is, those like Hewitt who earn at least $100,000 per year. See §541.0. Moreover, the regulation for highly compensated employees (§601) does not refer to or incorporate §604, which contains the two-thirds requirement, whereas §601 now does refer to other provisions of the regulations. 29 CFR §541.601(b)(1) (2020). In addition, the regulation for highly compensated employees (§601) expressly authorizes an employer to make a catch-up payment to an employee near a year’s end in order to push the employee over the $100,000 per year threshold. That regulation simultaneously makes clear that, for such a highly compensated employee, only about $25,000 of his compensation needs to be guaranteed in weekly salary. That express authorization for significant catch-up payments directly contravenes any suggestion that highly compensated employees who earn at least $100,000 per year are subject to the two-thirds requirement. In short, §604’s two-thirds requirement did not apply to Hewitt, who earned about $200,000 per year.
To sum up, neither of the Court’s two rationales holds up in light of the text of the regulations and the undisputed terms of Hewitt’s pay. Because Hewitt performed executive duties, earned at least $100,000 per year, and received a guaranteed weekly salary of at least $455 for any week that he worked, I would hold that Hewitt was not legally entitled to overtime pay under the regulations.
One last point: Although the Court holds that Hewitt is entitled to overtime pay under the regulations, the regulations themselves may be inconsistent with the Fair Labor Standards Act. See, e.g., Brief for State of
