Since the day of hire, this employee has received per diem. The original company sold and the new company decided within 6 months after acquiring the business, that they would not pay per diem to anyone working within 2 hours of the local office. Per diem was paid to anyone who lived more than 2 hours from where they were working. This employee lives more than 300 miles from the office and is no longer receiving per diem. He can if he works more than 2 hours from the local office. However, if he works near his home, he again cannot recieve per diem. Is this a legal practice? There is no employee handbook or known policies about per diem. Rules change with the wind. Does the employee have a legitimate complaint? Can this employee legally do anything about this? Also, there is no evaluation system or performance appraisal system. Cash bonuses are given and there is no system or known policy about receiving bonuses. Jobs are never posted and no fair opportunity is given to employees to apply for open positions within the company. Employees are hand picked to fill vacant positions. What can be be done to prevent this unfair and possibly illegal practices?
Employment / Labor Attorney
By per diem, I assume you mean a stipend for expenses while on the road. The rule is that money for meals, lodging, fuel, toll fees, and etc. are benefits given by the business at its own discretion. In other words, as long as minimum wage and overtime laws are not being violated, it is a matter set by the terms of the contract between employee and employer. Absent a labor union, the employer can unilaterally set the terms of prospective employment, and the employee can accept those terms (e.g., the new per diem rate) or reject them and go elsewhere to contract for their labor. The more pertinent question is whether the employer is not paying overtime, i.e., counting as hours worked, all the time these employees spend away from the office. That is something that will require a review of their duties and how they are paid to see whether they are exempt. There is an upswing in overtime cases right now involving situations like this, in light of some recent cases concerning what should be considered work time for nonexempt employees who work away from their employer’s workplace. As far as having no employee handbook, written policies, evaluations, bonus criteria, or job posting and promotion policies, none of those are legally required. It may not be a wise choice for running a business but not illegal. Hope that helps. -Don