If you are a traveling nurse or another type of employee who receives per diem pay in California, you may be entitled to overtime on your per diems, as well as your base hourly rate.

In Clarke v. AMN Servs., LLC (9th Cir. Feb. 8, 2021, No. 19-55784) 2021 U.S. App. LEXIS 3360, the Ninth Circuit found that AMN Services was underpaying its employees by excluding the value of their per diem benefits in its overtime rate calculations. Included in these per diem benefits was the cost of meals, incidentals, and housing while working away from home.

The Court held that AMN’s per diems were wages rather than reimbursements, according to the “payment-function” test developed by the Ninth Circuit for determining if a payment should be included in the “regular rate of pay” for overtime calculation purposes.

A copy of the Ninth Circuit’s decision can be found here.

If you are paid per diems and do not believe you have been paid overtime on your per diems, please feel free to reach out to Lebe Law for a free consultation.