California Per Diem Employee Rights Exposed: How to Fight Back and Win!

Emanuel Shirazi

Some employers require part of their workforce to be on an as-needed basis, reducing their employee expenses by only giving these employees hours when the business needs extra help. These employees, called per diem employees, benefit from this arrangement with a flexible schedule that often pays a higher hourly wage than typical salary rates. Often, this type of employment benefits both the employee and the employer; however, the employer could take advantage of this arrangement and violate the rights of the employee. When this occurs, the employee may consider filing a lawsuit against their employer and recover any damages that may have arisen.

What Is Per Diem Employment?

Per diem employees are similar to independent contractors, but they are still considered an employee of the company. They are typically brought in by the business to work during periods of increased workloads or staffing shortages. This means the employees often work irregular and variable hours on a part-time basis. Per diem employees do not receive traditional employment benefits such as:

  • Paid Time Off (PTO)
  • Retirement Coverage
  • Health Insurance

With this loss in benefits comes the flexibility of choosing to accept the shifts offered by the company and a per diem pay rate, which is often higher than the position’s standard pay rate. This type of employment is often beneficial for employees that have several other obligations, such as familial issues or another job, as it provides a flexible way to bring in extra income without being required to keep a typical work week.

Employer Responsibility to Per Diem Employees

Though per diem can be beneficial for both employers and workers, there are specific obligations that the employer is responsible for under this agreement.

  • Full-Time Equivalency
    Employers must track the hours of their per diem employees, as any employee that has more than 30 hours on the clock in a week is considered full-time under the Affordable Care Act. If a per diem employee reaches a full-time schedule, the employer is required to make health insurance available to the employee.
  • Medical and Family Leave
    The employer must also keep track of an employee’s total hours throughout the year. The Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) guarantees employees job security during family and medical leave if they work more than 1250 hours over a 12-month period.
  • Personnel Records
    Employers are expected to maintain documentation for per diem employees as they do for typical part- or full-time employees. The same disciplinary and corrective action processes should also be used for per diem employees, as well as the performance feedback processes.
  • Employer Policies
    Employment laws and the employer’s own worker policies must be extended to per diem employees as well as regular part- and full-time employees. It is the employer’s responsibility to inform the employee of their policies, including factors like meal and rest requirements and timekeeping processes. Per diem employees are also entitled to paid sick leave and protected absences, so employers must ensure a policy is in place for per diem employees that do not qualify for PTO.
  • Employee Understanding
    It is the employer’s responsibility to ensure the employee understands the per diem relationship. To help ensure the employment relationship is clear, employers should keep written policies or agreements that state the characteristics of the relationship. It should include things like the expected limited hours, the limitations of benefits, the absence of guaranteed hours, and the expected availability.

If an employer fails to deliver on any of these areas of responsibility, the per diem employee may be able to file a labor dispute. Speaking with a skilled employment attorney about your situation can help you determine if an employer has violated your rights as a per diem employee and the options you have moving forward.

FAQs

Q: Why Would a California Employee Want to Have a Per Diem Classification?

A: Some per diem employees do not have the same protections and benefits that regular part- and full-time employees are provided, so one may question why some employees choose this type of employment. Per diem employees are offered flexible shift options with a constantly changing schedule that may appeal to employees that desire a lighter workload while having a higher salary rate than other part-time employees.

Q: What Happens if a Per Diem Employee Works More Than 30 Hours Per Week?

A: According to the Affordable Care Act, any employee that works an average of 30 plus hours per week for an employer that has more than 50 full-time employees will be classified as a full-time equivalent employee. This full-time designation means the employer is required to offer the employee at least one affordable healthcare plan that provides minimum value. For this reason, it is important for both the employee and employer to track the hours worked.

Q: In What Industries Are Per Diem Employees Common?

A: Per diem employees are skilled employees that can easily fill a professional role on short notice. As such, they are especially common in the education industry, as substitute teachers are often employed on a per diem basis. They are also common in the healthcare, restaurant, and construction industries, as these employees are already knowledgeable about the position and can quickly fill in during high volume or low staffed periods.

Q: How Are Part-Time Employment and Per Diem Employment Different?

A: Both part-time and per diem employees generally work less than 30 hours each week, but there are important differences between the two classifications. Part-time employees may work shorter, more regular shifts and receive the typical pay rates for regular employees. Per diem employees often work full shifts at a higher salary rate due to their ability to work on short notice but without some of the benefits that part-time employees receive.

Protecting Your Rights as a Per Diem Employee

With experience representing employees of all business sizes, including Fortune 500 companies, major retailers, universities, and hospitals, Shirazi Law Firm, PC, can effectively handle all types of employment issues. Offering personal service and aggressive representation, our staff will ensure your rights are protected. If you believe your employer is taking advantage of your position as a per diem employee and violating your employment rights, reach out to Shirazi Law Firm, PC, today for a thorough consultation.

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