United States: Recent Department Of Labor Settlement Highlights Need For Employer Caution When Characterizing Wages As "Per Diem" Payments

Keywords: DOL, settlement, employer caution, per diem payments

A recent $2 million settlement between the US Department of Labor (DOL) and Hutco, Inc., a major labor services firm, highlights the care that employers must take to accurately characterize "per diem" payments to avoid liability under the Fair Labor Standards Act (FLSA) when calculating the wages due to temporary workers and independent contractors.

Hutco, headquartered in Lafayette, Louisiana, provides skilled and unskilled labor to industries including vessel construction and repair, oil field fabricators, warehousing and distribution, and manufacturing and storage terminals. Following an investigation of Hutco's headquarters, the DOL's Wage and Hour Division determined that Hutco violated the FLSA throughout six branch establishments in Louisiana, Mississippi and Texas, by utilizing improper pay and record-keeping practices causing employees to be denied overtime compensation.1 Specifically, as stated in its News Release, the DOL found that Hutco "mischaracterized certain wages as 'per diem' payments and impermissibly excluded these wages when calculating overtime premiums, thus denying employees earned overtime compensation."

The FLSA requires that non-exempt employees who work more than 40 hours in a work week must be paid overtime wages of one and one-half times their "regular rate" of pay.2 The FLSA broadly defines "regular rate" as the hourly rate actually paid to the employee for "all remuneration for employment."3 The regular rate must reflect all payments that the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.4 However, per diem payments"reasonable payments" made to reimburse employees for certain work-related expenses—may be excluded from an employee's "regular rate."5 Such reimbursement payments are excludable so long as they "reasonably approximate" the employee's work-related expenses (e.g., travel or other expenses incurred on the employer's behalf).6 But the DOL has recognized that when the amount of per diem varies with the amount of hours worked, the per diem payments are part of the regular rate in their entirety.7 And where an employee receives per diem payments but does not actually incur additional expenses, such payments "do not constitute bona fide reimbursements and must be included in the employee's regular rate of pay for purposes of computing an overtime premium."8

In finding that Hutco improperly mischaracterized certain wages as per diem payments, the DOL determined that Hutco committed "FLSA record-keeping violations involving the accuracy of employees' wages and actual hours worked." In its settlement agreement with the DOL, Hutco agreed to pay $1,916,850 in back wages to 2,267 employees, including welders, fitters, tackers, electricians, blasters, painters, forklift operators and warehouse personnel. Hutco's payment of these back wages is ongoing, and the Louisiana Workforce Commission is reviewing the case.

In addition to the monetary settlement, Hutco agreed to comply with the FLSA by undertaking specific measures such as: (1) setting standards to accurately identify and compensate workers who qualify for bona fide per diem payments; (2) paying accurate overtime and ensuring per diem payments are not automatically excluded from overtime calculations; (3) informing employees about their pay and employment conditions; and (4) obtaining written acknowledgement from employees that they understand the criteria for receipt of per diem payments. Furthermore, Hutco agreed to maintain accurate records "demonstrating which employees received bona fide per diem payments and that such payments are based on applicable Internal Revenue Service guidelines, or upon a reasonable approximation of the expenses incurred."

Temporary workers and independent contractors may face particular risk in suffering employer violations of the FLSA's wage-and-hour laws. In announcing the settlement with Hutco, the DOL Wage and Hour Division's acting deputy administrator, Mary Beth Maxwell, emphasized, "Temporary employment arrangements can make the worker-employer relationship difficult for workers to understand. As a result, temporary workers face the risk of not being treated as employees in terms of the wages and legal protections guaranteed under federal law."

The Hutco settlement reinforces the importance that all employers review their overtime calculation protocols to ensure proper calculation of regular rate and overtime pay, especially concerning wages paid to temporary workers and independent contractors. Employers providing a per diem payment for expense reimbursement must be careful not to exclude the per diem payment from the regular rate calculation if the per diem amount is based on hours worked.

Footnotes

1 US Department of Labor—WHD News Release (May 6, 2013), http://www.dol.gov/opa/media/press/whd/WHD20130618.htm (visited May 13, 2013).

2 29 U.S.C. § 207(a)(1).registration rules have yet to be finalized by the SEC.
3 Id. § 207(e).

4 Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 461 (1948).

5  29 U.S.C. § 207(e)(2); see also 29 C.F.R. § 778.217(b).

6 29 C.F.R. § 778.216(a), (b)(3), (c).

7 Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1041 (5th Cir. 2010); see also Dep't of Labor, Field Operations Handbook, § 32d05a(b) (2000) ("Situations may be encountered where the employer makes per diem or other subsistence payments, or pays an allowance to offset the additional expenses incurred by an employee because he is required to work at a distant or isolated location and must live away from home. Such payments may be excluded from the regular rate of pay to the extent that they do not exceed a reasonable approximation of actual additional expenses involved in such situations.").

8 US Department of Labor—WHD News Release, supra, note 2.

Originally published August 9, 2013.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2013. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions