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  • Per diem in CA

    I've found some threads very helpful(thank you) but have a few loose ends...here goes.
    I've held a non-exempt, inside sales position for the last 6 yrs & travel for the company 2-3/yr, usually flying out on a weekend. When traveling, I'm given a $15/day Per Diem. I guess to cover M/I. Up until 2 yrs ago & only after my prompting the co. to ask their attorney, my employer only gave me flight/layover hours & did not pay me for travel time to airport, hotel, & 1hr wait before flight. Although they now count this extra time, I still get a 1hr deduction for "lunch" which it's not really MY time if I'm stuck at an airport!My questions are:
    Can I recoup this loss of pay from the past 6 yrs?
    Can I expect the co. to pay me the IRS rate(M/I) less the $15 for all past days spent traveling since I never kept receipts?
    Since I've brought this to their attention multiple times, expect all this w/10% interest?

    Thank you

  • #2
    Per diem California

    In California for expenses:

    2802. (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful. (b) All awards made by a court or by the Division of Labor Standards Enforcement for reimbursement of necessary expenditures under this section shall carry interest at the same rate as judgments in civil actions. Interest shall accrue from the date on which the employee incurred the necessary expenditure or loss. (c) For purposes of this section, the term "necessary expenditures or losses" shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section.

    If you don't have actual receipts, you will have to rely on the information in Internal Revenue Service Publications 463 and 1542.


    For travel:

    46.3 Extended Travel Time. The California rule requires wages to be paid for all hours
    the employee is engaged in travel. The state law definition of “hours worked” does not
    distinguish between hours worked during “normal” working hours or hours worked
    outside “normal” working hours, nor does it distinguish between hours worked in
    connection with an overnight out-of-town assignment or hours worked in connection
    with a one-day out-of-town assignment. These distinctions, and the treatment of some
    of this time as non-compensable, are purely creatures of the federal regulations, and are
    inconsistent with state law. (O.L. 2002.02.21)

    46.3.1 Under state law, if an employer requires an employee to attend an out-of-town business
    meeting, training session, or any other event, the employer cannot disclaim an
    obligation to pay for the employee’s time in getting to and from the location of that
    event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car,
    or other mode of transport, in traveling to and from this out-of-town event, and time
    spent waiting to purchase a ticket, check baggage, or get on board , is, under such
    circumstances, time spent carrying out the employer’s directives, and thus, can only be
    characterized as time in which the employee is subject to the employer’s control. Such
    compelled travel time therefore constitutes compensable “hours worked.” On the
    other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage
    in purely personal pursuits not connected with traveling or making necessary travel
    connections (such as, for example, spending an extra day in a city before the start or
    following the conclusion of a conference in order to sightsee), is not compensable. If
    the employee’s travel from his home to the airport is the same or substantially the same
    as the distance (and time) between his home and usual place of reporting for work, the travel time would not begin until the employee reached the airport. The employee must
    be paid for all hours spent between the time he arrives at the airport and the time he
    arrives at his hotel. No further “travel” hours are incurred after the employee reaches
    his hotel and is then free to choose the place where he will go . (O.L. 2002.02.21)

    Comment


    • #3
      Per Diem in CA

      I just asked the office man. for all 6 yrs travel/OT reports which allerted my GM. The co. is Japanese owned & the culture believes employees owe their life to the co. I explained CA law to him and he is going to talk to his attorney(which he has done in the past). When I stated that I should be paid for my past uncompensated time he went white & said it will be difficult for him. Japan will not understand. Making me feel guity that he will be in hot water. What steps should I now take? Do they have to give me copies of my travel docs?

      Comment


      • #4
        Just hang loose for a little while and see what falls out. Even the DLSE will only go back three years. I think you could go back four years (or more) in a civil suit; the problem there would be that time records don't need to be kept that for more than 3-4 years.

        You have nothing to feel guilty about. Neither should the office manager. The law is the law, irrespective of the "culture".
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

        Comment


        • #5
          I'd be a little concerned about getting termed for being a troublemaker. I'd strongly consider filing a charge with the DLSE so that any retaliation complaint would be much more clear cut.

          Hang in there.

          Comment


          • #6
            Originally posted by TheRed View Post
            I'd be a little concerned about getting termed for being a troublemaker. I'd strongly consider filing a charge with the DLSE so that any retaliation complaint would be much more clear cut.

            Hang in there.
            Shoot, if I'd been terminated every time somebody thought I was a "troublemaker".................

            OTOH, I was actually, once.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              Travel and expenses California

              I suggest you do as I did and search for a law firm that handles labor law. Interview 3 different firms and go with the one that you feel best about. California requires employers to maintain records for 3 years. The DLSE can go back that far. Under a civil action if the employer enjoyed an advantage over it's competition you can go back 4. Claim only what you can remember for the 4th year. It will be up to the employer to prove you wrong.

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