Per Diem Employee

A per diem employee is a worker who work on an as needed basis. A per diem employee does not have a regular schedule or shift but instead works hours as assigned.

By Brad Nakase, Attorney

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What does it mean to be a per diem employee?

In California, a per diem employee refers to a type of temporary or part-time worker who is typically hired on an as-needed basis. The term ‘per diem’ comes from Latin and translates to ‘per day’. Per diem employees are often hired to fill short-term staffing needs, such as covering shifts, filling in for employees on leave, or assisting during busy periods.

For example, a nurse who works at a patient’s home often is an employee of a nursing agency hired by the patient; the nurse works on a per diem basis when work is available.

Per diem employees generally have flexible work schedules and are not guaranteed a set number of hours or a regular schedule. They may work irregular hours, including weekends, evenings, or holidays, based on the employer’s needs.

Per diem employees are typically classified as non-exempt, meaning they are entitled to overtime pay for any hours worked over 8 hours per day or 40 hours per week. However, it is crucial to note that the classification ultimately depends on the specific job duties and other factors.

Per diem employees may have limited or no access to employee benefits such as health insurance, retirement plans, or paid time off. Additionally, they may not receive the same level of employment protections as full-time or regular part-time employees.

In California, per diem employees are generally entitled to the same protections against discrimination and harassment as other employees under state and federal laws.

What are the pros and cons of being a per diem employee?

Being a per diem employee in California can have both advantages and disadvantages. Here are some of the common advantages:

  1. Flexibility. Per diem employees often have the advantage of flexible work schedules. They can choose when to work and may have the ability to decline shifts if they are not available or interested. This flexibility can be beneficial for individuals who have other commitments or responsibilities outside of work.
  2. Variety of workplace. Per diem employees often work in various settings, such as hospitals, clinics, or other organizations. This exposure to different environments can provide a broader range of experiences and opportunities for skill development.
  3. Higher hourly rate. Per diem employees may receive higher hourly rates compared to regular employees in exchange for the lack of benefits and job security. This can be advantageous for individuals who prioritize earning potential over long-term stability.

Now let’s look at some of the disadvantages of being a per diem employee:

  1. Lack of job security. Per diem employees typically do not have job security since their employment is contingent on the employers need for temporary staff. They may not have a guaranteed number of hours or a consistent schedule, which can lead to income variability and uncertainty.
  2. Limited benefits. Per diem employees often have limited or no access to employee benefits such as health insurance, retirement plans, paid time off, or other perks that regular employees receive. This can impact their overall compensation package and financial security.
  3. Unequal treatment. In some cases, per diem employees may not receive the same treatment or opportunities as regular employees. They might not be considered for promotions or advancements, and they may not have the same level of job protections as full-time employees.
  4. Lack of stability.  Since per diem employees are not typically guaranteed regular work, they may need to constantly seek out new assignments or jobs. This lack of stability can make financial planning and career development more challenging.

It is important to consider these factors and assess your individual circumstances and priorities before deciding to pursue per diem employment.

What is the employer’s responsibility in terms of per diem employment?

Employers have certain responsibilities when it comes to per diem employment in California. While the specific obligations may vary depending on the circumstances and applicable laws, here are some general responsibilities employers typically have:

  • Fair employment practices. Employers are responsible for adhering to fair employment practices and complying with anti-discrimination laws. They must not discriminate against per diem employees based on protected characteristics such as race, gender, religion, age, disability, or national origin.
  • Wage and hour laws. Employers must comply with California’s wage and hour laws when it comes to per diem employees. This includes paying at least the minimum wage, providing overtime pay for hours worked beyond eight hours per day or 40 hours per week, and ensuring accurate record-keeping of hours worked and wages paid.
  • Providing a safe workplace. Employers have a duty to provide a safe working environment for per diem employees. This includes implementing safety protocols, providing necessary training and equipment, and addressing any workplace hazards or concerns.
  • Compliance with employment laws. Employers must comply with other applicable employment laws, such as providing workers’ compensation coverage, offering reasonable accommodations for employees with disabilities, and following regulations related to meal and rest breaks.
  • Communication and clarity. Employers should provide clear and transparent communication to per DM employees regarding their roles, expectations, and any policies or procedures that may apply. This includes informing per diem employees about their pay rates, work schedules, and any specific conditions of their employment.

It is important to note that the specific obligations of employers may vary depending on the size of the organization, the nature of the work, and other factors. It is advisable for workers to familiarize themselves with the relevant employment laws to consult with an attorney for employee in relation to per diem employment.

When is a per diem employee eligible for FMLA?

Per diem employees may be eligible for the Family and Medical Leave Act, or FMLA, under certain conditions. As a federal law, the FMLA offers eligible employees unpaid, job-protected time off for certain medical and family reasons. To be eligible for FMLA, an employee must meet certain criteria including:

  • Employer coverage. The employer must be covered by the FMLA. Generally, private employers with 50 or more employees within a 75-mile radius, as well as public agencies (including schools), are covered by the FMLA. However, there may be exceptions in specific requirements depending on the employer type.
  • Employee eligibility. The per diem employee must meet the eligibility requirements, which include working for the employer for at least 12 months, having worked at least 1,250 hours during the previous 12-month period, and working at a location where the employer has fifty or more employees within a 75-mile radius.

If a per diem employee meets these criteria, they may be eligible for FMLA leave under the following circumstances:

  • Serious health issue. A per diem employee may take FMLA leave if they have a serious health problem that makes them incapable of performing their job duties. The serious health condition can be their own or that of a spouse, child, or parent.
  • Birth or adoption. A per diem employee who is the biological parent or who is adopting a child may be eligible for FMLA leave to bond with the newborn or newly adopted child.
  • Take care of a family member. A per diem employee may be eligible for FMLA leave to care for a spouse, child, or parent with a serious health condition.

It is important to note that eligibility for FMLA leave as a per diem employee may also depend on other factors, such as the number of hours worked and the length of the assignment. It is recommended for per diem employees to consult with their employer’s HR department or review the company’s FMLA policy to understand their specific eligibility and rights under FMLA.

How do per diem employees benefit employers?

Per diem employees can provide several benefits to employers in various industries. First, these employees offer flexibility and staffing, allowing employers to adjust their workforce based on fluctuating workloads seasonal demands or unexpected absences. Employers can bring in per diem employees as needed, ensuring adequate coverage without committing to long-term employment contracts.

Hiring per diem employees can also be a cost-effective option for employers. Since per diem employees are typically not entitled to benefits such as health insurance or retirement plans, employers can save on those expenses. Additionally, per diem employees are often paid hourly which means employers only pay for the actual hours worked, reducing labor costs during slower periods.

Also, per diem employees often bring specialized skills or expertise to the table. They may have experience working in various settings or possessed unique qualifications that can be valuable in certain situations. Employers can tap into this pool of talent to address specific needs or access specialized knowledge without hiring full time employees.

Employers can also use per diem employment as a trial period to assess the suitability of employees before considering them for permanent roles. It allows employers to evaluate the per diem employee’s skills, work ethic, and compatibility with the team or organization before making long-term commitments.

Further, hiring per diem employees can contribute to a more diverse workforce. Per diem employees may bring different perspectives, experiences, and backgrounds to the organization, enhancing creativity, problem-solving, and innovation within the workforce.

Of course, it is important to note that while per diem employees offer flexibility and benefits to employers, it is crucial for employers to adhere to labor laws, provide fair treatment, and maintain compliance with employment regulations to ensure a positive and legally compliant work environment for per diem employees.

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