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Employment Law/per diem fairness

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Question
I realize from my research that private employers are not required to pay a per diem.  My question is if they are paying some employees a per diem must they also pay all employees doing essentially the same job a per diem?  Here is an example, some employees living in one town are paid around $300 a week for traveling 80 miles round trip per day to the work site.  I live in a different town and travel between 100 and 120 miles a day round trip and receive no per diem pay.  The actual reasoning for this is very convoluted, and I pretty much get the feeling that if i complain or question this, I will be labeled a trouble maker, and will soon be looking for another job.  I know they don't have to pay any per diem, but it seems this is treating one employee doing the same job differently than another employee doing the same job.  Any help on this matter would be greatly appreciated

Answer
Daniel,

While it does seem unfair, you are correct that the policy/practice regarding payment of a per diem likely is not unlawful. While there are requirements under some state labor laws (such as California) that employees be reimbursed for business related expenses, generally, employers are free to set the terms of employment how they choose as long as they are complying with applicable labor laws such as minimum wage and overtime, and are not violating an employment contract or engaging in unlawful discrimination (race, gender, national origin, age, etc.).  You don't mention anything that leads me to think there is unlawful discrimination, but if they were only paying the per diem to only employees of a particular race or only to male employees - that could be a "discrimination" issue that should be filed with the EEOC.

Employment in most states is considered “at will” which means that absent a statute or an express agreement (such as an employment contract) to the contrary, either party in an employment relationship may modify any of the terms or conditions of employment (including such things as pay, schedules, personnel policies, etc.), or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.

Should you desire to further pursue this issue, you may want to use the U.S. Department of Labor [1-866-4-USA-DOL / www.dol.gov] as a resource, or if you believe there is some kind of unlawful discriminatory motive behind this, you should contact the Equal Employment Opportunity Commission ("EEOC") at 1-800-669-4000.

I hope this information is helpful.

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Michael Lore

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I will take questions regarding employment law, with a focus on wage and hour issues involving overtime pay under the Fair Labor Standards Act (FLSA) and applicable state laws (eg. California).

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I am an attorney with 15+ years experience in the area of labor and employment law, with a practice that concentrates heavily in the area of wage and hour litigation - involving unpaid overtime wages, commissions, work related expenses and vacation pay.

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American Bar Association, American Association for Justice, National Employment Lawyers Association

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