Can an employer not pay per diem when an employee works from home and is out of state?

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Can an employer not pay per diem when an employee works from home and is out of state?

My husband and I live in one state and he works in another. We pay for his flights back and forth to home and work. He works on an oil rig and has very limited hours to get groceries and even limited time to eat. He buys all his groceries before getting to the work site. He then works 12-14 hour shifts. He does not go out to restaurants to eat. His employer has been paying per diem but has of next month will paying it. Is this legal?

Asked on February 25, 2016 under Employment Labor Law, Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Legally, an employer is under no obligation to provide a per diem under this or any other circumstance. Such payments are discretionary. Therefore, unless this acton violates an employment contract, union agreement or even company policy itself, it is legal. Also, it must not constitute some form of actionable discrimination (which it does not appear to). The fact is that in "at will' employment, a company can set the terms and conditions of work much as it sees fit. This includes whether or not to pay a per diem.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

There is no legal obligation whatsoever on employers to pay per diems when employees travel or work out of state--it is purely voluntary on their part. They do not need to provide any extra compensation, in any form, when an employee is out of state. So yes, an employer does not need to pay a per diem, and if they previously paid one, may freely discontinue doing so.


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