Day Rate Overtime Pay (2026): The FLSA Formula After Helix v. Hewitt

The Short Answer

If your employer pays you a flat amount per day worked — no matter how many hours — you are almost certainly a non-exempt employee under the Fair Labor Standards Act (FLSA), and you are owed overtime at 1.5× your regular rate for every hour over 40 in a workweek. This is true even if you earn more than $100,000 or $200,000 a year. The U.S. Supreme Court settled this in Helix Energy Solutions Group, Inc. v. Hewitt, 598 U.S. 39 (2023): a day rate is not payment on a "salary basis" under 29 CFR § 541.602(a), so the highly-compensated employee (HCE) exemption does not apply.

If you're a day-rate worker — a tool pusher, driller, MWD/LWD hand, welder, medic, drill supervisor, EMT, offshore worker, or construction foreman — this article shows the exact 2026 formula, two worked examples, and the four steps to recover unpaid overtime.

Why Day Rate Workers Are Non-Exempt (the Helix Rule)

Michael Hewitt was a tool-pusher on an offshore oil rig earning over $200,000 a year on a $963/day rate. Helix argued he was exempt as a highly-compensated executive. The Supreme Court disagreed 6–3 and held:

• To be paid on a "salary basis" under 29 CFR § 541.602(a), an employee must receive a predetermined amount for any week in which he performs any work, without regard to the number of days or hours worked.
• A day rate fails that test by design — the paycheck goes up with each extra day worked and down if a day is missed.
• Therefore, the executive, administrative, professional, and highly-compensated exemptions do not apply to day-rate employees, no matter how high the pay.

The only two ways an employer can lawfully use a day rate for an exempt worker are the narrow carve-outs in 29 CFR § 541.604(b): a guaranteed weekly minimum of at least $684 plus a reasonable relationship between the guarantee and actual earnings. Almost no oil-and-gas or construction day-rate plans meet both.

The 2026 Day Rate Overtime Formula (29 CFR § 778.112)

The Department of Labor's regulation for day-rate workers is straightforward:

Step 1 — Total straight-time pay for the week

Day rate × days worked = total weekly pay

Step 2 — Regular rate

Total weekly pay ÷ total hours worked that week = regular rate

Step 3 — Overtime premium

Because the day rate already compensates you at straight-time for all hours worked, you're owed the extra 0.5× premium on hours over 40:

Regular rate × 0.5 × (hours over 40) = overtime owed

Total owed for the week = day-rate pay + overtime premium.

Worked Example 1 — Oil & Gas Tool Pusher (Texas)

• Day rate: $800/day
• Days worked: 7 (a full hitch)
• Hours per day: 12
• Total hours: 84

Step 1 — Straight-time: $800 × 7 = $5,600

Step 2 — Regular rate: $5,600 ÷ 84 = $66.67/hr

Step 3 — OT premium: $66.67 × 0.5 × (84 − 40) = $66.67 × 0.5 × 44 = $1,466.74

Total owed for the week: $7,066.74 — not $5,600.

Over a 26-week rotation, that's roughly $38,000 in unpaid overtime per worker.

Worked Example 2 — Construction Foreman (Pennsylvania)

• Day rate: $450/day
• Days worked: 6
• Hours per day: 10
• Total hours: 60

Step 1: $450 × 6 = $2,700

Step 2: $2,700 ÷ 60 = $45.00/hr

Step 3: $45.00 × 0.5 × 20 = $450.00

Total owed: $3,150.00 — $450 more than the check the employer wrote.

Industries Most Affected in 2026

• Oil & gas — drillers, tool pushers, MWD/LWD, mud engineers, roustabouts (Texas, Louisiana, Oklahoma, North Dakota, Pennsylvania)
• Construction — foremen, superintendents, welders, pipefitters on per-diem or day-rate plans
• Offshore & maritime — Jones Act workers still fall under FLSA unless they're seamen (very narrow exemption)
• EMS & healthcare — flight medics, offshore medics, travel nurses on per-diem contracts
• Trucking (non-motor-carrier-exempt) — local day-rate drivers under 10,001 lbs GVW

State Overlays That Increase What You're Owed

• California: daily overtime after 8 hours and double-time after 12 (Labor Code § 510). A 12-hour day-rate worker in CA is owed 4 hours of OT + 0 hours of DT per day on top of the federal weekly premium.
• Alaska & Nevada: daily overtime after 8 hours.
• Texas, Louisiana, Oklahoma, Pennsylvania, North Dakota: federal FLSA weekly rule only — but Helix still applies. See our Texas, Louisiana, and Pennsylvania calculators.

How to Recover Unpaid Day-Rate Overtime

• . Pull 2–3 years of paystubs and daily timesheets. The FLSA statute of limitations is 2 years, extended to 3 years for willful violations (29 U.S.C. § 255(a)).
• . Run the numbers using the formula above — or use our Overtime Pay Calculator and enter your blended hourly rate.
• . File a WH-3 wage complaint with the DOL Wage and Hour Division: dol.gov/agencies/whd/contact/complaints{rel="nofollow"}.
• . Consider a collective action. Day-rate cases almost always affect an entire crew or field office; 29 U.S.C. § 216(b) lets similarly-situated workers opt in. Successful plaintiffs recover back pay + an equal amount in liquidated damages + attorney's fees.

Frequently Asked Questions

I make over $150,000 a year on a day rate — am I really non-exempt?

Yes. That's exactly the fact pattern in *Helix v. Hewitt*. Total pay is irrelevant; the method of pay decides exemption, and a day rate fails the salary-basis test.

My contract calls me an "independent contractor" on a 1099. Does that change anything?

No — misclassification is decided by the economic reality test (29 CFR Part 795, 2024 rule), not the label on your tax form. If you work set hours on the employer's site with their equipment, you're likely an employee.

What if my day rate includes a per-diem for meals and lodging?

Bona-fide per-diems for travel expenses are excluded from the regular rate under 29 CFR § 778.217. But if the "per-diem" is really wages in disguise (paid regardless of travel), the DOL will include it — which increases the overtime you're owed.

Does the Motor Carrier Act exemption apply to me?

Only if you drive a commercial vehicle over 10,001 lbs GVWR in interstate commerce. Most day-rate oilfield hands and construction workers are not covered by the MCA exemption after the SAFETEA-LU Technical Corrections Act of 2008.

Bottom Line

A day rate is a wage-and-hour landmine for employers and a massive back-pay opportunity for workers. If you've been paid a flat daily amount for 12-hour days on 7-and-7 or 14-and-14 rotations, run your numbers today — the average oilfield day-rate settlement in 2024–2025 was between $25,000 and $75,000 per worker.