By: Nicholas J. Ferraro | March 16, 2021 | Wage and Hour
According to California labor lingo, a per diem employee is an employee who doesn’t have a regular schedule but instead works hours as assigned. This category of employee is common in a variety of industries including education and healthcare.
Ideally, a per diem employment arrangement works well for both the employer and the employee. The employer has a trained professional waiting to pinch-hit at a moment’s notice, for example when a hospital is understaffed and needs additional nurses.
For employees, the main draw to such an arrangement is flexibility. Instead of committing to 40 hours a week, a per diem employee can balance family time with work more easily.
Per Diem Distinctives
In exchange for that flexibility, however, some per diem employees will have to give up some of the benefits that typically come with full-time employment. Generally speaking, per diem employees aren’t eligible for health insurance coverage, retirement benefits, or paid time off.
While these fringe benefits might seem easy enough to forgo, over time their value can be quite substantial. It is important every per diem employee weighs the cost of forgoing those benefits before they agree to be a per diem employee.
From an employer’s perspective, it is vital that what is expected of employees and what benefits they will and will not be eligible to receive is clearly communicated. If it isn’t, it could lead to labor disputes later on down the road.
What’s the Employer’s Responsibility?
In addition to making sure they have communicated clearly (usually in writing) the terms of the per diem employment arrangement, an employer has a variety of other things they need to carefully track.
One of the employer benefits of utilizing per diem labor is that it keeps costs down. Health insurance costs have skyrocketed in recent years and when an employer brings on a full-time (or full-time equivalent) employee, they are required by the ACA to offer coverage. The definition of full-time equivalent is an employee who works 30 or more hours per week.
If a per diem employee is regularly working that much, they need to be offered a health insurance plan as they are considered full-time equivalent. If an employer fails to do so, it could be cause for a labor dispute.
It is also the responsibility of employers to track the number of hours a per diem employee works over the course of a 12-month period. If the total is more than 1250 hours, the employee is eligible to receive paid time off under the Family and Medical Leave Act (FMLA).
Per diem employees should also track their hours so they can prove they have earned either a health care plan or paid time off. If a per diem employee can show they are eligible, the employer is required by law to offer these benefits.
Get Legal Representation If You Have an Employment Dispute
As noted above, benefits like paid time off and health insurance coverage can be quite valuable to an employee over time. If an employer is not offering those benefits when they are required by law to do so, it is within the per diem employee’s rights to take legal action to get the benefits they are due.
While such an endeavor can seem daunting, the help of a skilled employment lawyer can ease the burden of confronting an employer. By working with a knowledgeable employment lawyer, you can increase your chances of getting the benefits you deserve and guard yourself against retaliation should an employer dispute your eligibility.
Employers should not be allowed to take advantage of their per diem employees. With the help of an employment attorney who understands wage and hour disputes, you can attain justice.
To learn more, call our San Diego law firm at (619) 693-7727 or contact us online.
