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Employee per diem may be wages for calculation of regular rate of pay

United States Publication March 2021

Calculating the regular rate of pay accurately is essential in paying overtime correctly under federal and state law. The Ninth Circuit Court of Appeals addressed this issue in Clarke, et al. v. AMN Services LLC, DBA Nursechoice. The case involved two classes of clinicians employed by a healthcare staffing company who were paid a weekly per diem—which the company characterized as an expense reimbursement—to cover commuting costs. In reversing the trial court's grant of summary judgment in favor of the company, the court held that the per diem functioned as compensation rather than expense reimbursement because it was paid in advance each week, did not require proof of actual expenses incurred, and was tied to the number of shifts worked each week by the employee regardless of actual travel costs.

This opinion serves as a stark reminder of the importance of proper pay policies and practices. Simply characterizing an employee benefit as a per diem or an expense reimbursement does not automatically make it a non-wage benefit for the purposes of calculating overtime pay. Failing to properly classify benefits and wages may expose employers to costly class and PAGA actions, as employees will not only be seeking unpaid overtime, but all of the corresponding penalties that can increase exposure exponentially, including inaccurate wage statement penalties and waiting time penalties.

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