United States Fifth Circuit

In an action under the Fair Labor Standards Act (FLSA) based on defendants' failure to increase plaintiff's "per diem" hourly rate, judgment for plaintiff is affirmed in part where: 1) when, as here, the amount of per diem varies with the amount of hours worked, the per diem payments are part of the regular rate in their entirety; 2) there was no clear error in the district court's finding that the violation was willful; and 3) in paying the per diem, defendant did not pay plaintiff any additional sums that could be characterized as advanced or inappropriate amounts subject to an offset against the overtime owed to him. However, the judgment is vacated in part where the district court needed to provide additional explanation for its awards and with specific instructions to include time spent on this appeal in determining the amount of attorney's fees.

Appellate Information

• Decided 05/28/2010
• Published 05/28/2010

Judges

• EMILIO M. GARZA, Circuit Judge:, Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

Court

• United States Fifth Circuit

Counsel