Fifth Circuit Finds Failure To Include Per Diem Pay In “Regular Rate” Violates FLSA

The Court of Appeals for the Fifth Circuit affirmed the lower court’s determination that a staffing company violated the Fair Labor Standards Act (FLSA) when it failed to include a per diem payment in its “regular rate of pay” calculation.

Pursuant to the FLSA, all non-exempt employees must be paid at a rate of one and one half times their regular rate of pay for all hours worked in excess of 40 hours in any workweek. “Regular rate” is defined under the act as “all remuneration for employment.” The overtime rate then become s a mathematical computation based on a factual determination.

In Gagnon v. United Technisource, Inc. an employee – a skilled craftsman – was paid $5.50 per hour plus a $12.50 per diem per hour payment by a staffing company. The typical rate of pay for his position was as much as $24 per hour.

The lower court acknowledged that in some instances per diem payments are not included in the regular rate of pay analysis. In this instance however, the court was suspicious that the payment schedule was designed to circumvent overtime laws. A skilled craftsman typically earns 3-4 times the rate of pay offered by the staffing company. The court noted that they were “troubled by the fact that the combined ‘straight time’ and ‘per diem’ hourly rates matched the prevailing wages.”

The court likened this fee arrangement to other situations where employers artificially lower an employee’s regular rate of pay as a bonus in order to avoid paying a premium for overtime work.

As a result, the lower court held it was a violation not to include the per diem payments as part of the “regular rate of pay” calculation. The 5th Circuit affirmed.

Overtime premiums can be a great source of extra income to employees. However, in order to avoid paying employees the total compensation due, some employers and companies try to alter how overtime is calculated. In most cases when an employer mischaracterizes your rate of pay, they have violated the FLSA.

If you believe you have been denied overtime compensation, please contact Buckley Bala Wilson Mew LLP, a Georgia law firm dedicated to employee’s rights.