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CA per diem violations? California

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  • CA per diem violations? California

    Hi first post, I work in construction in CA. My crew of six to eight have been working out of town in Los Angeles for eight months and our employer has not paid us any per diem and make most of the crew pay for their own hotels and meals with no reimbursement at all. They actually take the money out of their checks without permission. I am wondering if this is legal(do not think so), if not, can we be reimbursed and should I contact my lawyer and the labor board? Thanks for the info.

  • #2
    Under CA law (see below), the employer generally does have to reimburse certain expenses but they do not have to use the Per Diem method (IRS publication 1542) as the method. I am also going to include a pointer to the CA deduction rules.

    I do have a question however. Where do you normally work for this employer? The reason I am asking is that it make a difference to how the expense rules work. Example, Jim and Bob both normally work for the same employer in San Francisco. Let's say that I send Jim to a worksite in San Francisco, and Bob to a worksite in Los Angeles. At best Jim is going to get mileage, and even that is not a sure thing. Jim is not legally "away from home as far as this employer is concerned, but Bob is. These are legally two very different situations as far as CA law is concerned.

    Let's also assume I hire a brand new employee (Carol) to work in LA. Even if Carol normally lives in SF, she never worked for me in SF, and there is nothing in California law that would require me to pay for her LA living expenses. Of course, any of these folks could sign a contract requring the employer to pay something not inherently required to law. And even if the payment occurs, there is a whole other set of laws (mostly belonging to IRS) that determines whether or not the payments are taxable.

    Your question has the potential to be a "the devil is in the details" type of question.


    http://www.dir.ca.gov/dlse/FAQ_Deductions.htm

    Californa Labor Code section 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.
    Last edited by DAW; 11-15-2008, 10:03 AM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      California labor code 2802 requires reimbursement of any expenses related to the discharge of your duties with very limited exceptions ie. hand tools (hammer, nails etc.)
      Walter

      www.california-labor-laws-attorneys.com
      "Experienced Overtime Class Action Attorneys"


      This communication does not constitute legal advice, nor establish an attorney client relationship of any kind. You should contact an attorney prior to acting on or not acting upon any information contained herein.

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      • #4
        The company is based out of San Diego, CA and that is where I would normally work if there was work in town.

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        • #5
          Are you saying that you would normally work for the same company in San Diego? If so, then you have a good argument that the CLC 2802 rules are applicable.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            yes i was hired and normally work in San Diego past out of town jobs the company always paid for the hotel and twenty dollars a day, now nothing, really sucks to have to pay to work.

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            • #7
              So it sounds like CLC 2802 is applicable. Has your employer said why they are not paying expenses? Also, I am very unfamilar with So Cal. Is a daily commute (no hotel) unreasonable? I am pretty sure that it is, but if not, the employer will argue otherwise.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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              • #8
                Employer is saying they are not paying because it is a Time and Material job not a bid job. As to the commute it is one hundred twelve miles from my house to the job or one hundred thirty miles from the office to the job, so in my opinion and many others a commute is out of the question without some sort of payment. Also we start at six a.m. and on the way south to San Diego at three p.m. it takes two to three hours depending on traffic.
                Last edited by DozerOp; 11-15-2008, 04:07 PM.

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                • #9
                  Originally posted by DozerOp View Post
                  Employer is saying they are not paying because it is a Time and Material job not a bid job. As to the commute it is one hundred twelve miles from my house to the job or one hundred thirty miles from the office to the job, so in my opinion and many others a commute is out of the question without some sort of payment. Also we start at six a.m. and on the way south to San Diego at three p.m. it takes two to three hours depending on traffic.
                  What the company has contracted with the customer for has no legal relevance to whether you must be paid or not.

                  I grew up in SoCal and I agree that LA to SD is a PITA (to put it mildly) at 3 p.m. If it were my business, I'd at least pay mileage, just for the inconvenience of the "commute". Just sayin'.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    I agree, thanks for the replies, will talk to the Clc since employer is stonewaller.

                    Comment

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