In a big win for workers paid on a “day-rate” basis, a recent opinion out of the 5th Circuit which covers Texas, Louisiana and Mississippi, makes it crystal clear that being paid a daily rate (even $1,000+/day) is not the same as being paid a salary.  The result is that employees paid a daily rate cannot be classified as exempt from the overtime pay laws because they do not receive a guaranteed “salary” as required for the exemptions – meaning they are non-exempt and must be paid overtime. Workers who have been paid a day rate with no overtime may be entitled to recover up to double their back overtime pay for the past 2-3 years, and this can often amount to $10,000’s to $100,000’s in back wages.

Calculate how much overtime you might be owed here.

The Lawsuit – Highly Paid Daily Rate Tool Pusher Seeks Unpaid Overtime

The case was brought by an employee who had been working as a Tool Pusher for over two years. In that position, he managed other employees while on a “hitch”—that is, while working offshore on an oil rig. Each hitch lasted about a month. The company paid him a set amount for each day that he worked, and he worked more than forty hours a week. So, under the FLSA, he would ordinarily be entitled to overtime unless he was an exempt employee – which is what the company claimed, arguing that he was either an exempt executive or highly compensated employee.

Both of the exemptions asserted by the company require the employer to meet both a duties test and a salary test. The salary test 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.”


The employee claimed that he was not paid on a “salary basis” because his pay was calculated based on a daily, rather than weekly, rate. The company responded that his daily rate was greater than the weekly salary requirement under Labor Department regulations, so long as he 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.

A “salaried” employee knows the amount of their compensation for each weekly  pay period they work…before they work

The Labor Department regulations state:

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.

The regulation requires that an employee receive for each pay period a “predetermined amount” calculated on a “weekly, or less frequent” pay period – i.e. 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.

The Tool Pusher in this case was paid biweekly but had to take the number of days he worked (past tense) and multiply by the daily rate to determine how much he earned. So, he only knew his pay after he worked through the pay period. 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.

The court concluded that he was not paid on a “salary basis” and therefore the employer could not meet the requirement for any overtime pay exemption that requires an employee be paid a salary.

What to Do If You Have Been Paid a Day-Rate but No Overtime Pay

If you have been working overtime and only received a set Daily Rate (or a day rate plus per diem and reimbursements) for each day you work, there is a good chance that you and your coworkers could be missing out on significant overtime wages. The first thing you should do is begin keeping your own accurate record of all time actually spent working. The next step should be to contact a lawyer who handles overtime pay and wage and hour cases to review your situation.

If you have questions or believe that you have been the victim of wage theft due to an illegal day-rate pay scheme, contact us for a free and confidential review of your situation.

Michael Lore is the founder of The Lore Law Firm. For over 25 years, his law practice and experience extend from representing individuals in all aspects of labor & employment law, with a concentration in class and collective actions seeking to recover unpaid back overtime wages, to matters involving executive severance negotiations, non-compete provisions and serious personal injury (work and non-work related). He has handled matters both in the state and federal courts nationwide as well as via related administrative agencies. If you have any questions about this article, you can contact Michael by using our chat functionality.