Clarke v. AMN Servs., LLC, 987 F.3d 848 (9th Cir. 2021)

Plaintiffs who worked as travelling clinicians for AMN (a healthcare staffing company) were paid a weekly per diem benefit for weeks in which they worked at facilities located more than 50 miles from their homes.  In this class action, plaintiffs argued that the per diem benefits were improperly excluded from their regular rate of pay under the Fair Labor Standards Act (FLSA), thus decreasing their wage rate for overtime hours.  The Ninth Circuit determined the per diem benefits functioned as compensation for work rather than as reimbursement for expenses incurred and, therefore, should have been included in plaintiffs’ regular rate of pay for purposes of calculating overtime pay.  Among other things, the Court relied on the fact that AMN paid clinicians a per diem even for days they were not working and allowed them to offset missed or incomplete shifts with hours they had “banked.”