Who is an exempt employee under FLSA? Fifth Circuit Grants En Banc Rehearing in Hewitt v. Helix Energy Sols. Grp., 956 F.3d 341 (5th Cir. April 20, 2020, withdrawn and substituted by: 983 F.3d 789 (5th Cir. Dec. 21, 2020)

Mr. Hewitt was a toolpusher working for Helix Energy for two years offshore. He worked over 40 hours per week but was not paid overtime though he earned over $200,000 annually. He sued the employer which was granted summary judgment by the trial court which held he is not entitled to overtime pay. But, on appeal a split panel of the Fifth Circuit held that though Mr. Hewitt was a highly compensated employee, he was not exempt from overtime pay based on the FLSA and the regulations. (Judge Ho wrote the majority opinion dated Dec. 21, 2020 joined by Judge Higginson. Judge Ho also wrote an opinion concurring in his majority opinion. Judge Wiener dissented

The Fifth Circuit announced on March 9, 2021 that a member of the court requested a polling of the members for rehearing en banc. As a majority voted in favor, the opinion released on December 21, 2020 is vacated. The court will set a briefing schedule and rehear the matter at a later date.