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Yassine Baouch, et al. v. Werner Enterprises, Inc., dba Werner Trucking, et al.

Paid petition · United States Court of Appeals for the Eighth Circuit, No. 17-1661 · judgment November 14, 2018


Certiorari denied · October 7, 2019
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

The Fair Labor Standards Act (“FLSA”) and the IRS regulations distinguish wages paid to an employee from reimbursement for employer-related expenses. The respondent trucking companies paid certain drivers what the companies labeled “earnings” of between $1.86 and $12.57 a day, plus an additional $41 a day labeled “per diem.” For tax purposes, respondents sought to treat the per diem as reimbursement rather than wages, thus substantially reducing their liabilities under the Internal Revenue Code. An IRS Examiner concluded that the per diem payments were recharacterized wages, and thus subject to various federal taxes. On appeal, however, the IRS Appeals Commission sustained respondents’ contention that under the IRS regulations the per diem payments constituted reimbursement, not wages. In the instant case, drivers sued the trucking companies under the FLSA, contending that the per diem constituted reimbursement, not wages, and that the small amount denoted “earnings” was less than the federal minimum wage of $7.25 an hour. The court of appeals held that the per diem constituted wages, not reimbursement, under the FLSA. The court of appeals’ interpretation of the FLSA conflicts with the interpretation of that statute by other courts of appeals. The Question Presented is: Under what circumstances do per diem payments to an employee constitute wages, rather than reimbursement, under section 207(e)(2) of the FLSA?

Counsel of record

For petitioner
Eric Schnapper
Univ. of Washington School of Law

For respondent
Joseph E. Jones
Fraser Stryker PC LLO

Case

Conference history
Distributed for 1 conference

Linked docket
18A917

Proceedings

  1. Oct 07 2019
    Petition DENIED.
  2. Jul 31 2019
    DISTRIBUTED for Conference of 10/1/2019.
  3. Jul 29 2019
    Reply of petitioners Yassine Baouch, et al. filed.
  4. Jul 11 2019
    Brief of respondents Werner Enterprises, Inc., et al. in opposition filed.
  5. Apr 22 2019
    Petition for a writ of certiorari filed. (Response due July 15, 2019)
  6. Mar 12 2019
    Application (18A917) granted by Justice Gorsuch extending the time to file until April 20, 2019.
  7. Mar 07 2019
    Application (18A917) to extend the time to file a petition for a writ of certiorari from March 21, 2019 to April 20, 2019, submitted to Justice Gorsuch.