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IN EMPLOYMENT LAW

Per Diem Workers

Most workers who receive a ‘per diem’ in addition to their hourly pay are actually entitled to overtime pay at a higher rate. Per diem workers, employees that are generally hired for short or long term contracts through staffing and support service companies, play a valuable and legitimate role in today’s economy. When companies have large laborious projects that must be completed during a specific time frame and do not have enough workers in house they may choose to hire contracted workers through labor recruiting and staffing agencies.

How Are Per Diem Workers Paid?

These hired temporary laborers will usually travel to the remote job sites and be given a per diem stipend to spend on costs, like meals and lodging, incurred during their stay. In addition to their per diem rate, these workers are also paid an hourly rate. If a per diem laborer works more than forty hours in one week they must be paid over time.

Pay Issues Relating to Per Diem Workers

Many ongoing investigations within the temporary staffing industry have revealed several evasive pay practices. The Fair Labor Standard’s Act (FLSA) requires that hourly employees who work over forty hours per week be paid overtime least one-and-a half times their “regular rate” of pay. Companies have allegedly been wrongly labeling part of the worker’s regular hourly wage a “per diem” and excluded the per diem when calculating the rate for overtime, thus depriving them of overtime pay.

Although employers are allowed to separate the per diem pay from the hourly rate when calculating overtime, they must meet certain requirements for doing so such as documenting expense reports and making sure the per diem pay is equal to or less than the federal per diem rate. In many cases of these alleged wage violations, the companies were not meeting these requirements and manipulating the per diem pay in such a way that their calculation was cheating workers of significant overtime pay.

What Has Been Done to Remedy the Issues?

The Department of Labor (DOL) and employment law firms have caught wind of this per diem scheme and investigations, lawsuits and settlements have already had success in recovering unpaid overtime for some of the industries hardest workers. Findings show that per diem wage issues are especially prevalent for job positions like welders, steel fabricators and scaffold builders. Common industries that employ per diem workers include construction companies, oilfield services, and maritime fabrication facilities. Some notable recoveries for per diem workers can be found below:

  • B & D Contracting Inc., a staffing agency, agreed to pay $1.6 million in back wages to more than 1,500 current and former employees. An investigation by the DOL uncovered that the company had improper pay policies and record-keeping practices that left employees without the proper overtime pay.
  • Savard Marine Services, Inc., a construction services employment agency based out of Louisiana agreed to pay almost $60,000 in back wages to over 100 employees.
  • Hutco, Inc., a major industrial services employment agency in Louisiana agreed to pay over 2,000 employees conducting work in Mississippi, Louisiana and Texas $2 million in unpaid wages.

What Has Been Done to Remedy the Issues?

  • Welders
  • Welder Helpers
  • Cutters
  • Pipe Fitters
  • Steel Fabricators
  • Scaffold Builders
  • Shipfitters
  • Electricians
  • Outside Machinists
  • Painters
  • Maintenance Technicians
  • Sandblasters

RECORD SETTING AWARDS AND SETTLEMENTS

FOR OUR CLIENTS


$19,100,000

$19.1 Million for Tipped Restaurant Workers. (pending court approval)

Workers such as servers, bussers, runners bartenders, barbacks and other tipped workers at a large national casual dining chain alleged they were owed wages. Their claims included but were not limited to: unpaid overtime, spread-of hours, misappropriated tips, uniform-related expenses and unlawful deductions.

$15,900,000

$15.9 Million for Personal Bankers.

The firm was able to recover overtime compensation for personal bankers and others similarly situated at a national bank that operates hundreds of branches throughout the United States. Employees in affected positions claimed they were required to work more than 40 hours a week in order to meet sales quotas but were not compensated overtime for their pay.

$14,500,000

$14.5 Million for Spam Text Victims

Fitapelli & Schaffer was able to recover damages for recipients of unwanted promotional text messages from a popular young adult clothing retailer. The clothing company allegedly violated the Telephone Consumer Protection Act by sending text messages to recipients’ cellular phones without their prior express written consent.

$7,000,000

$7.0 Million for Bank Loan Officers

The firm was able to recover overtime compensation for loan officers at a national bank that operates more than hundreds of branches nationwide. Employees in affected positions claimed they were required to work more than 40 hours a week in order to meet sales goals but were not compensated overtime for their pay.

$5,900,000

$5.9 Million for Commissioned Car Salesmen.

One of the largest auto dealerships in the NYC Metropolitan Area agreed to pay owed wages to its car salesmen. The company was accused of failing to pay salesmen the proper minimum wage, overtime pay, commissions, and made unlawful deductions from their earned wages in violation of federal labor laws.

$4,300,000

$4.3 Million for Personal Bankers

Even though personal bankers at this nationwide bank were classified as exempt from receiving overtime pay, the company routinely required them to work in excess of 40 hours per week. There are federal laws that help protect workers from misclassification and in this situation; Fitapelli & Schaffer was able to recover unpaid overtime for personal bankers throughout the United States.

$4,300,000

$4.3 Million for Entertainers at Gentleman’s Clubs

F&S represented entertainers at a popular gentleman’s club in New York City that claimed the club failed to pay them the proper wages. The entertainers were able to recover owed wages that included unpaid minimum wages, overtime pay, spread-of-hours pay, unlawfully retained tips, unlawful deductions, and uniform-related expenses.

$3,600,000

$3.6 Million for Tipped Employees at Upscale Restaurant

Tipped workers alleged that a Mexican Michelin rated restaurant with 17 locations denied them overtime pay, minimum wages, and call-in pay. Our firm was able to recover wages for these tipped employees that included servers, bussers, bartenders, food runners and barbacks.

$3,400,000

$3.4 Million for Assistant Managers at Bank

Fitapelli & Schaffer successfully recovered unpaid overtime for assistant managers on a salary at a bank with locations nationwide. The salaried workers argued that they were wrongfully classified as exempt from receiving overtime when working over 40 hours per week.

$3,000,000

$3.0 Million for Bank Loan Officers

The fast food chain allegedly misclassified its assistant managers as salaried workers and considered them exempt from receiving overtime pay when working over 40 hours per week. Fitapelli & Schaffer was able to recover overtime compensation for all of the popular fast food chains’ assistant managers nationwide, with the exception of California.

$2,836,000

$2.9 Million for Tipped Restaurant Employees.

Fitapelli & Schaffer was able to recover unpaid minimum wages, overtime, spread-of hours, and unlawful deductions for tipped restaurant workers at a popular dining chain. Affected workers included servers, bussers, runners bartenders, barbacks and other tipped workers.

$2,250,000

$2.25 Million for Tipped Workers at Chain Sports Bar

proper minimum wage and overtime. Fitapelli & Schaffer helped the workers recover owed wages to the following positions: servers, bussers, bartenders, and other tipped workers under federal and state labor laws.

$2,000,000

$2.0 Million for Bank Loan Officers

Fitapelli & Schaffer was able to successfully recover unpaid overtime for loan officers at a nationwide bank that operates over one thousand locations across the United States. Loan officers for the company alleged that even though they were hourly employees and consistently worked over 40 hours per week they were working off the clock and not getting overtime pay.

$1,950,000

$1.95 Million for Health Care Workers

A New York based health insurance provider allegedly had its health care workers working over 40 hours per week but required they submit weekly timesheets that only showed they worked 37.5 hours. Fitapelli & Schaffer was able to successfully recover compensation for unpaid wages, overtime and spread of hours pay.

CONTACT

FITAPELLI & SCHAFFER LLP


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