Barbara10172002

Is there anyone else interested in joining this discussion WITHOUT resorting to accusations of "freaky..conspirator?" If so, I would appreciate your feedback. There are many activities which occur frequently that ARE illegal, per say, yet persist. For example, murder is illegal but still happens. Speeding is illegal. CEO's of several hospitals in one community meet and "fix" wages despite the illegal nature of this act. This particular activity does not make the headlines but it still happens. (Austin, TX.) Re-characterization of wages (the subject of this post) is also ILLEGAL (as decided by the TX supreme court) but is continuing in the travel industry across the nation. Unless and until those who have standing to challenge this practice do so, at the federal level, it will continue. The good news is that each person has the choice to remain in denial or not.

You are correct in that there is no limit to reimbursement for per diem and M&I. You are also correct regarding your reference to GSA guidelines for federal employees. This is the metric used to determine, by location, the daily amount which is actually deductible for expenses when filing tax returns, when itemizing deductions. If one files a 1040 EZ, there is no issue. If a travel claims MORE than that limit, without receipts, s/he is liable for the difference. The agency is NOT liable for an excess claimed by the traveler but may be held accountable for paying MORE than the guidelines allow. (Not having traveled in several years, I don't know if any actually DID but would not be surprised, as this is a way for the agency to minimize its tax liability.) This issue is at the heart of the IRS investigations. If you believe that the IRS is disconnected from overtime pay issues, I don't know what to say except I am CERTAIN it is. More overtime pay means more tax liability for everyone. To date, the IRS IS well aware of this amount paid to travelers as some companies abused the system and are under continued scrutiny by this agency. Furthermore, these company audits have led to individual audits, as you pointed out. Please see: Gagnon v United Technisource Inc US Court of Appeals, Fifth Circuit, May 2010 (07 F.3d 1036; 2010 U.S. App) which I believe is the landmark case in which the court ruled overtime is to be paid on both the base and expenses. I disagree with your assessment that a "large percentage of travelers lie about their tax home." I would be interested to see your references to support that observation. Regarding the assertion that the hospitals do not know how much the traveler is being paid, I'm skeptical. This may have been true in the past but the stakes today are very different. Businesses work together to minimize their greatest expense...payroll. Perhaps you might be able to explain why a facility in CA requires travel OR nurses to recover patients post-op rather than call in their own staff? This practice is CLEARLY not in the best interest of patient care, no matter how you look at it. My theory is that it costs the hospital less to pay overtime (at less than time and a half) to the agency than to pay a higher rate to staff. Finally, it is painfully clear that NO ONE is enforcing the Fair Labor Standards Act. As hospitals and many other providers of health care face a continuous reduction in reimbursement by Medicare, Medicaid and private insurance companies, as regulatory processes become more and more complex, I can expect nothing less than the people in the trenches, including the patients, being shortchanged.

This is NOT a solicitation for a class action case although I suspect this will eventually come to pass, if it has not already. I did read cases which were decided by the Supreme Court of TX. In Gagnon v UTI, the court ruled that UTI (employer) was wrong in not paying time and a half. In fact, that particular case is dead on point with what is happening in the travel agency industry. Whether hospitals are complicit in this practice is beyond my ability to know without any evidence. My gut tells me that this practice is now universal in our country. And honestly, many foreign nurses are probably not aware of the Fair Labor Standards Act which governs the payment of overtime. That being said, I'm guessing many native nurses are not aware either. The tax advantage to the travel companies is similar to that of the nurse. Neither pays taxes on the "per diem" rate. Unless, of course, the "tax free" monies exceeds the amount allowed by federal statute. In that case, the nurse pays tax on the difference at filing time. My research leads me to believe the IRS is scrutinizing travel agencies to determine whether they are paying their "fair share" or not. The post was edited to be included in a category other than the one I posted to. Thanks for your feedback.

I recently interviewed and was offered a travel assignment in both FL and CA. In each instances, the contract was refused due to a discrepancy in overtime rate. Rather than pay time and a half after 40 hours as the Federal Labor Standards Act requires, both companies offered less. On that basis, I declined the offers. It appears travel companies offer "tax free" per diem in addition to a lower hourly rate upon which overtime is based. After reviewing several cases in appellate courts and reading the FLSA, section 207, I am looking for feedback from others who have faced this situation. In addition, I would like to know if anyone is aware of a travel agency which does not operate using what appears to be an illegal practice in compensation. Thanks for your feedback/insights.