Where the amount of per diem varies with the amount of hours worked, the per diem payments are part of the regular hourly rate in their entirety, according to the federal Department of Labor handbook.
Whether per diem payments should be considered in calculating an employee's regular hourly rate and rate of overtime pay must be determined on a case-by-case basis. The courts have recognized that per diem payments can be used as part of a ruse to evade paying overtime at a proper rate as Robert Abell has discussed on his Kentucky Employment Law Blog, "Per Diem Payments Ruled Part of Employee's Regular Wage Rate for Purposes of Calculating Overtime Rate."
Both the federal Fair Labor Standards Act and Kentucky law require that all non-exempt employees be paid at an overtime rate for all hours worked greater than 40 in a work week. If you have not been paid overtime due you, contact Lexington, Kentucky overtime attorney Robert Abell at 859-254-7076.
