The Fifth Circuit Court of Appeals recently ruled on a Fair Labor Standards Act matter. Gagnon v. United Technisource, Inc., No. 09-20098 (5th Cir. May 27, 2010), available at http://www.ca5.uscourts.gov/opinions/pub/09/09-20098-CV0.wpd.pdf. The plaintiff, a skilled craftsman, contracted with his employer to be paid $5.50 per hour for “straight time” and $20.00 per hour for overtime. The parties also agreed the employee would receive, as a “per diem,” $12.50 per hour for every hour worked, up to forty hours per week. The plaintiff later sued, alleging that he was not adequately compensated for his overtime work.
The Fifth Circuit Court of Appeals upheld the district court’s ruling that the plaintiff was not adequately compensated for his overtime work. The FLSA requires that non-exempt employees who work more than forty hours in a work week be paid one and one-half times their “regular rate” of pay. Here, the employer attempted to avoid paying the proper amount of overtime pay by artificially designating portions of the employee’s wages as either straight time or per diem. The per diem amount should have been included in the employee’s regular rate of base pay for determining proper overtime pay under the FLSA.
To speak with a Dallas employment law attorney regarding the Fair Labor Standards Act, contact the employment law attorneys at Clouse Dunn Khoshbin LLP at [email protected].
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