Am I owed overtime if my employer pays me by the day?

Yes, in most cases. Day-rate pay is legal, but it does not by itself make you exempt from overtime. Under the Fair Labor Standards Act, a non-exempt employee who works more than 40 hours in a workweek must receive an overtime premium on top of whatever pay structure the employer uses. The Supreme Court confirmed in Helix Energy Solutions Group v. Hewitt, 598 U.S. 39 (2023), that paying a worker by the day, even at a high rate, does not satisfy the salary-basis test for the white-collar exemptions. If you are paid a flat daily rate and you work overtime, the law requires the employer to calculate your regular rate for that week and pay you an additional half-time premium for every hour over 40.

Does a day rate count as a salary that makes me exempt from overtime?

No. A day rate is not a salary for purposes of the FLSA's white-collar exemptions. The salary-basis test under 29 C.F.R. § 541.602(a) requires that you receive a predetermined amount of compensation each pay period on a weekly or less frequent basis, and that amount cannot vary based on the number of days or hours you work. A day rate by definition varies with how many days you show up. The Supreme Court addressed this directly in Helix Energy Solutions Group v. Hewitt, 598 U.S. 39 (2023), holding that an oilfield worker paid more than $200,000 per year on a daily rate was still entitled to overtime because the daily-rate structure did not satisfy the salary-basis test. The dollar amount does not save the arrangement. The structure does.

How is overtime calculated for a day-rate worker?

For a day-rate worker, the regular rate for any given workweek is calculated by taking all the day-rate compensation earned that week and dividing it by the total hours worked. That gives you the regular rate for that week. The overtime premium is then one-half of that regular rate, multiplied by every hour worked over 40. This method is set out in 29 C.F.R. § 778.112. So a worker paid $400 per day who works 70 hours in a week earns $2,800 in day-rate pay (seven days at $400), which divided by 70 hours produces a $40 regular rate. The half-time premium is $20, owed on the 30 overtime hours, for an additional $600 that week.

What can I recover if I worked overtime on a day rate and was never paid the premium?

You can recover the unpaid overtime premium for every workweek you worked more than 40 hours without it. On top of that back-pay amount, the FLSA provides liquidated damages in an equal amount, which typically doubles the recovery. The lookback period is two years for standard violations and three years if the violation was willful. A blanket day-rate policy applied to a workforce that routinely works 60, 70, or 80 hours per week often supports a willfulness finding. Day-rate cases tend to involve large damages numbers because the hours worked are high and the unpaid premium accumulates fast. If there is no recovery, you pay nothing, not even the costs.

Which day-rate workers are actually exempt from overtime?

Very few. To be exempt from FLSA overtime under one of the white-collar exemptions, you must satisfy both a salary-basis test and a duties test. A day-rate structure standing alone does not satisfy the salary-basis test, as the Supreme Court held in Helix Energy. There is a narrow regulatory workaround at 29 C.F.R. § 541.604(b) that allows an employer to combine a guaranteed weekly amount with additional pay calculated on an hourly, daily, or shift basis, but only if the guaranteed weekly amount itself meets the salary threshold and there is a reasonable relationship between the guaranteed amount and the total compensation usually earned. Most employers using a flat day rate are not doing this. They are paying a day rate and calling it a salary. That is not how the law works.

Day Rate Pay and Overtime in Texas: Why Most Day-Rate Workers Are Owed Time-and-a-Half

I get calls every week from workers who tell me some version of the same story. They are paid a flat amount per day. They work twelve or fourteen or sixteen hours per day, six or seven days a week. They never see an overtime line on the pay stub. When they ask, they are told that they are on a day rate, and day rates do not get overtime, and that is just how it works.

That is not how it works. It has never been how it works. And after the Supreme Court's 2023 decision in Helix Energy Solutions Group v. Hewitt, there is no longer any serious argument the other way.

What Day-Rate Pay Actually Is

A day rate is a flat amount the employer agrees to pay for a day of work. The structure does not change based on how many hours you work that day. Whether you put in eight hours or sixteen hours, the day rate is the same.

Day-rate arrangements are common in industries with long, variable, and unpredictable shifts. Oilfield service work runs on day rates. So does a lot of pipeline construction, well-site supervision, large commercial construction, long-haul trucking and dispatch, traveling healthcare staffing, and some private security and protective services.

The day rate is convenient for the employer because it converts an irregular workday into a predictable cost. The employer knows what each shift costs regardless of how long the worker is actually on the job.

That convenience does not change what the law requires. Day-rate pay is legal as a compensation structure. Day-rate pay without overtime, for a non-exempt worker who crosses 40 hours in a workweek, is not.

Why Employers Misclassify Day-Rate Workers

In my experience, three things drive day-rate misclassification.

The first is a genuine misunderstanding. Some employers, especially smaller ones, believe that paying a day rate is functionally the same as paying a salary, and that a salary means no overtime. Neither half of that belief is correct. Salaries do not automatically exempt anyone. A day rate is not a salary.

The second is industry convention. In oilfield services and large-scale construction, day-rate pay without overtime has been the norm for decades. The convention predated the case law that clarified it was unlawful. Plenty of employers continued the convention because everyone else was doing it and nobody had told them to stop.

The third is the most cynical version. Some employers know exactly what the FLSA requires and have made a calculation that the overtime premium across a workforce that regularly logs sixty to eighty hours per week is more expensive than the litigation risk. They will pay the day rate, sit on the unpaid overtime, and deal with whatever lawsuits come. That calculation is becoming a worse bet after Helix Energy, because the salary-basis defense that some employers used to rely on is now closed.

The Helix Energy Decision

The Supreme Court decided Helix Energy Solutions Group v. Hewitt, 598 U.S. 39 (2023), in a 6-3 opinion written by Justice Kagan. The facts make the holding striking.

Michael Hewitt was a tool pusher on an offshore oil rig. He was paid a daily rate that ranged from $963 to $1,341 per day. He typically worked 28-day hitches, twelve hours a day, every day. His annual compensation exceeded $200,000. Helix Energy classified him as exempt under the highly compensated employee exemption and paid him no overtime.

The Court held that Hewitt was non-exempt and owed overtime, because his day-rate compensation did not satisfy the salary-basis test under 29 C.F.R. § 541.602(a). That regulation requires that an exempt employee receive a predetermined amount on a weekly or less frequent basis, and that the predetermined amount not be subject to reduction based on the quantity of work performed. A day rate inherently fails that test. If the worker works zero days, the worker earns zero dollars. The compensation moves with the days worked, which means it is not a predetermined weekly amount, which means it does not satisfy the salary-basis test, which means the exemption does not apply.

The Court rejected the argument that the dollar amount somehow saved the structure. The salary-basis test is a structural test, not a dollar-amount test. As Justice Kagan put it, the regulation says what it says. A daily rate is not a weekly salary.

There is one narrow exception built into the regulations themselves, at 29 C.F.R. § 541.604(b), which allows additional compensation on a daily or shift basis if there is also a guaranteed weekly amount that meets the salary threshold and bears a reasonable relationship to the total amount usually earned. Helix did not use this structure. Most employers do not. They use a flat day rate and call it a salary. After Helix Energy, that argument is dead.

How Day-Rate Overtime Is Calculated

The calculation method for day-rate workers is set out at 29 C.F.R. § 778.112. The math is straightforward.

For any workweek in which a day-rate worker works more than 40 hours, the regular rate is the total day-rate compensation for that week divided by the total hours worked. The overtime premium is one-half of that regular rate, multiplied by each hour over 40.

The half-time method applies because the day-rate compensation already includes payment for all the hours worked. The worker has been paid for the time component already. What is owed is the additional half-time premium for the overtime hours.

I will walk through a concrete example so you can see how this works.

A Worked Damages Example

Assume an oilfield supervisor paid $500 per day. The supervisor works a 14-day hitch, twelve hours a day, every day. That is two workweeks. Each week looks the same: seven days worked at $500, total 84 hours.

Step one: total day-rate pay for the week. Seven days at $500 equals $3,500.

Step two: total hours worked. Twelve hours per day for seven days equals 84 hours.

Step three: regular rate. $3,500 divided by 84 hours equals $41.67 per hour (rounded).

Step four: overtime hours. 84 total hours minus 40 regular hours equals 44 overtime hours.

Step five: half-time premium. Half of $41.67 is $20.83. Multiplied by 44 overtime hours equals $916.67 in unpaid overtime for that week.

Now multiply across a working year. A supervisor working a 14-on-14-off rotation works roughly 26 weeks per year on rotation. At $916.67 per week, that is $23,833 in unpaid overtime in a single year. Over two years, the back-pay number is $47,666. Add liquidated damages in an equal amount, and the recovery is $95,333. If the violation is willful (and a blanket day-rate policy applied to a non-exempt workforce often is), the lookback extends to three years and the recovery climbs above $140,000 on a single worker.

That arithmetic is why day-rate cases tend to be large. The hours are high. The premium accumulates fast. The lookback runs for years.

Common Day-Rate Fact Patterns I See

Oilfield services. Tool pushers, drilling supervisors, completion supervisors, mud engineers, directional drillers, frac operators, wireline operators. Many of these workers are paid a flat day rate, work multi-week hitches, and put in twelve or more hours per day. After Helix Energy, the salary-basis defense is no longer available to their employers.

Large commercial construction. Project superintendents, site supervisors, traveling specialty trades, storm-restoration crews. Day-rate arrangements are common, particularly on out-of-town and disaster-response work where the days are long and the schedules are unpredictable.

Trucking and logistics. Some long-haul drivers, dispatchers, and yard supervisors are paid on a day rate. The Motor Carrier Act exemption may apply to certain driving roles in specific circumstances, but it does not apply to most dispatchers, yard personnel, and supervisors paid on a day-rate basis.

Traveling healthcare. Some traveling nurses, traveling techs, and traveling allied health workers are placed on day-rate structures by staffing agencies. I see this most often with crisis-response and rapid-deployment staffing arrangements.

Private security and protective services. Executive protection details, traveling security teams, and specialty security contracts sometimes pay a day rate for shifts that routinely run twelve to sixteen hours.

If you are paid by the day in any of these industries and you work more than 40 hours in a workweek without an overtime line on your pay stub, you very likely have a claim.

The Limits: Which Day-Rate Workers Are Actually Exempt

This is the section I owe you, because not every day-rate worker is non-exempt.

A day-rate worker can be exempt from overtime, but only in narrow circumstances, and every element has to be present at the same time.

The first path is the narrow regulatory carve-out at 29 C.F.R. § 541.604(b). Under that provision, an employer can pay a guaranteed weekly amount that itself satisfies the salary threshold (currently $684 per week, with higher thresholds for the highly compensated employee exemption), and then add additional compensation on an hourly, daily, or shift basis. The structure works only if the guaranteed weekly amount is actually guaranteed (you receive it regardless of how many days you actually work that week) and only if there is a reasonable relationship between the guaranteed amount and the total amount you typically earn. Most employers using a flat day rate do not have this structure. They have only the day rate.

The second path is for workers whose actual duties qualify for an exemption that does not depend on the salary-basis test. Certain outside sales employees are exempt without any salary requirement. Certain agricultural workers, certain transportation workers under the Motor Carrier Act, and some categories of seasonal employees are governed by separate exemption rules. Some of these may apply to specific day-rate workers in specific industries, and the analysis is fact-intensive.

The critical point: if your employer is telling you that you are exempt because you are on a day rate, the employer is asserting the exact argument the Supreme Court rejected in Helix Energy. The day-rate structure on its own does not exempt anyone. Some other rule has to do that work, and the employer has the burden of proving it.

A few other limits worth being honest about. The FLSA's overtime requirement does not apply to a small set of enterprises that fall below the FLSA's coverage thresholds, and it applies only to non-exempt employees, not to true independent contractors. If you have been told you are an independent contractor, that is a separate analysis. See my post on whether you are an independent contractor or an employee. Calling someone a 1099 contractor does not make it so.

What to Do If You Are Owed Day-Rate Overtime

Pull whatever records you have. Pay stubs, direct deposit records, schedules, time sheets, daily logs, hitch logs, text messages confirming the day-rate amount, anything that shows the days worked and the pay received.

If you do not have records, write down what you remember. Your employer. Your job. Your day rate. Your typical schedule. The hitch lengths. The years you worked there. Under the FLSA, when employer records are missing or inaccurate, courts allow the worker to estimate damages and shift the burden to the employer to disprove them.

Day-rate cases also tend to lend themselves to collective actions. Most employers do not put one worker on a flat day rate and pay everyone else with an overtime premium. They put the entire crew on the same structure. That means the people you worked alongside likely have the same claim you do, and a collective action under § 216(b) of the FLSA may be the right structure for the case.

A Final Word on Why This Matters

I have spent a long time on day-rate cases, and what I see across the industry is real money taken from workers who earned it. The hours are long. The conditions are hard. The work is often dangerous. And the overtime premium is not some accounting technicality. It is what the law promises in exchange for the hours over 40.

The employer's convenience in using a day rate does not relieve the employer of the obligation. The Supreme Court has now said that twice over, most recently in Helix Energy. The argument that a day rate is a salary is gone.

If you are paid by the day in Texas, in the oilfield, on a construction site, in trucking, in healthcare staffing, or in security, and you have been working more than 40 hours per week without an overtime premium, the case is probably there. The evaluation is free. If there is no recovery, you pay nothing, not even the costs.

Contact Welmaker Law, PLLC for a free consultation. Call (512) 799-2048.

Doug Welmaker is an FLSA overtime attorney at Welmaker Law, PLLC in Longview, Texas. He has practiced employment law for more than 30 years, with the last 15 years focused exclusively on plaintiff-side wage and hour cases in federal court. He handles cases in the Western, Eastern, Northern, and Southern Districts of Texas, the District of New Mexico, and in other federal courts nationwide.