By Michael D. Thompson

A recent decision by the First Circuit Court of Appeals examined the question of whether expense reimbursements were actually "shadow wages" that should have been included when calculating an employee's overtime rate.

In Newman v. Advanced Technology Innovation Corp., the plaintiffs were non-exempt engineers who worked remotely. Each plaintiff signed an agreement with Advanced Tech under which they were to receive (i) an hourly wage, (ii) overtime at a rate more than one-and-a-half times the hourly wage, and (iii) a "per diem expense reimbursement" in light of their remote work assignments.

The plaintiffs claimed that the per diem was “tied to hours worked in a week and thus, in reality, was a shadow wage.”  The plaintiffs therefore contended that the calculation of their regular rates should have included both their hourly wages and their per diems, and thus Advanced Tech should have paid them one-and-a-half times that combined amount for any overtime hours worked.   

The United States District Court for the District of Massachusetts granted summary judgment to Advanced Tech, and the plaintiffs appealed to the First Circuit Court of Appeals.

On appeal, the First Circuit Court of Appeals noted that the regular rate does not include reasonable payments for travel expenses, “supper money” when an employee works late or expenses incurred because the employee “is required to report for work at a place other than his regular workplace.”

By contrast, payments for expenses normally incurred by the employee for his or her own benefit, such as “buying lunch, paying rent, and the like,” are included in the regular rate.

The Court of Appeals then quoted the Department of Labor Wage and Hour Division's Field Operations Handbook on the issue of “per diem” payments:

If the amount of per diem or other subsistence payment is based upon and thus varies with the number of hours worked per day or week, such payments are a part of the regular rate.

However, … if an employee returns to his home or employer's place of business at noon, the payment of only one-half the established per diem rate for that particular day would not thereby be considered as payment for hours worked and could thus be excluded from the regular rate.

According to the First Circuit, when paying less than a full-day per diem, “the method of calculating the per diem in that circumstance must use a day as its measuring unit, and not an hour...  If the per diem method makes reductions from that maximum on an hourly basis— such that it would reduce the total per diem by a mere hour's worth — it runs afoul of the Handbook's guidance.”

The Circuit Court then pointed to evidence that the number of hours worked was a factor in the formula that Advanced Tech used to calculate the per diem payments it made to its employees. For that reason, the First Circuit concluded that the per diem payments to the plaintiffs should have been included in their regular rates for purposes of calculating their overtime rates.

Accordingly, the First Circuit reversed the summary judgment for the employer and remanded the case for entry of partial summary judgment for the plaintiffs as to liability.

Newman v. Advanced Tech is a reminder that employers should make certain they are not paying per diem reimbursements calculated on an hourly basis, and are not reimbursing employees for expenses that the employees would normally incur for their own benefit.

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