Since its passage in 1938, the Fair Labor Standards Act (FLSA) has exempted, "any employee employed in a bona fide executive, administrative, or professional capacity … (as such terms are defined and delimited from time to time by regulations of the secretary …)" from the requirement to pay minimum wage or overtime to employees. The meaning of this phrase and the nature and extent of the U.S. Department of Labor's (DOL) authority to "define and delimit" the so called "white collar" or "EAP" exemption recently has been called into question by U.S. Supreme Court Justice Brett Kavanaugh's dissenting opinion (which was joined by Justice Samuel Alito) in Helix Energy Solutions Group v. Hewitt.

For more than 80 years, the DOL's regulations implementing the EAP exemption have required that in order to qualify for the exemption from minimum wage and overtime: the employee must be paid a predetermined and fixed salary not subject to reduction due to variations in the quality or quantity of work performed (the "salary basis test"); the salary level must be at or above a minimum specified amount (the "salary level test"); and the employee's job duties must primarily involve executive, administrative, or professional duties as defined by DOL regulations (the "duties test"). These three requirements, which have formed the foundation of wage and hour law since 1940, may be headed for a legal challenge in a district court near you.