Hewitt v. Helix Energy Sols. Grp.

Opinion

 [*790]  James C. Ho, Circuit Judge:

Our prior opinion in this case is withdrawn, and the following is substituted in its place. The petition for rehearing en banc remains pending.

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] The Fair Labor Standards Act establishes a standard 40-hour work week by requiring [**2]  employers to pay a 50 percent overtime penalty for any time worked over 40 hours per week. See 29 U.S.C. § 207(a). Many people do not think of overtime pay  [*791]  as a penalty on the employer, but as a benefit to the employee. But that is not the only way—and perhaps not even the proper way—to understand the Act. Historically, the FLSA has been understood to "reduce unemployment," as well as to protect workers from excessive hours, by encouraging employers to hire two workers to work 40 hours rather than one worker to work 80 hours. Hence the use of the term "penalty." See, e.g., Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1176 (7th Cir. 1987) (Posner, J.) (explaining that Congress enacted the FLSA in part "to spread work and thereby reduce unemployment, by requiring an employer to pay a penalty for using fewer workers to do the same amount of work as would be necessary if each worker worked a shorter week"). See also Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 577, 62 S. Ct. 1216, 86 L. Ed. 1682 (1942) ("[O]ne of the fundamental purposes of the Act was to induce worksharing and relieve unemployment by reducing hours of work.") (quotations omitted).

] These principles apply, of course, only to those workers who are in fact covered by the Act. Congress exempted "bona fide executive, administrative, [and] professional" employees from the overtime laws. 29 U.S.C. § 213(a)(1). And [**3]  it expressly authorized the Secretary of Labor to promulgate regulations to further "define[] and delimit[]" those terms. Id.

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