                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1661
                        ___________________________

    Yassine Baouch, on behalf of himself and all those similarly situated; Scott
 Larrow, on behalf of himself and all those similarly situated; Justin Burkholder;
  Robert William Herrmann; Radek Kohout; Jack Dean Michael; Steven Richard
Milstead; James Myrick; Troy Edmund Townsend; Claire Elizabeth Bodo; Wayne
Darius Grant; Adam Hoffman; Joseph Dewayne Thomas; Danielle Marie Barney;
   Chad Ryan Basso; Caroline Cecelia Busick; Christopher Clay Day; Bruce L.
  Marsha; Dale Don Oshiro; Aaron David Wing; David Allen Faykosh; Steve N.
   Neely; Jatarveiyon Kevin Lee Ashley; Michael Egli; Thomas Fisher; John A.
 Phillips; Marvin E. Rush; Marvin E. Rush; Adams Frank Akhalu; Steven Wayne
 Doane; Thomas A. Gillis; William A. Hamilton; John Ray Minor; Joseph Sablan
Salas; Timothy Leonardo Smith; Terri Lynn Thacker; Brian Zeitz; Lance Edwards;
                          Mark Sohmer; Joseph Horton

                      lllllllllllllllllllllPlaintiffs - Appellants

                                          v.

      Werner Enterprises, Inc., doing business as Werner Trucking; Drivers
                                Management, LLC

                      lllllllllllllllllllllDefendants - Appellees
                                      ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                            Submitted: May 15, 2018
                            Filed: November 14, 2018
                                  ____________
Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

BEAM, Circuit Judge.

       Appellants, a class made up of over 52,000 experienced and student over-the-
road truck drivers employed by Werner Enterprises, Inc., appeal from the district
court's1 grant of summary judgment in favor of Werner, and the court's dismissal of
this action raising claims under federal and state wage and hour laws. We affirm.

I.    BACKGROUND

       In 2003,2 Werner implemented an optional Payment Plan, which compensated
drivers employed in positions that required them to travel and spend nights away from
home on a regular basis. The Payment Plan offered non-taxable, mileage-based
"Payments" to those drivers electing to participate in the Plan. In order to provide the
Payments free of employment and income taxes, Werner's Payment Plan had to
qualify as an "accountable plan" under Internal Revenue Service (IRS) Treasury
regulations. Treas. Reg. § 1.62-2(c)(2). And, in order to qualify as an accountable
plan, the Payment Plan needed to meet the IRS regulations' so-called business
connection, substantiation, and return of excess expenses requirements. Id. § 1.62-
2(c)-(f). To that end, when it established the Plan, Werner represented to the IRS, in
part, that the Payments at issue were reimbursements for travel expenses that
employees were reasonably expected to incur.


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
      2
      At that time the Payment Plan was only available for Werner's student drivers.
Werner made the Plan available to eligible, experienced drivers in 2004.

                                          -2-
       Specifics regarding the Payment Plan are explained more fully by the district
court. For general purposes here, however, it is key to note that because the Payments
were not subject to employment and income tax withholding, the Payment Plan's
primary effect was to cause participating drivers to receive more money in the form
of take-home pay in their weekly paychecks. Student drivers participating in the
Payment Plan received a low taxable daily rate and static untaxed Payments for every
day they were considered away from home overnight. Participating experienced
drivers received one portion of their pay based on an applicable mileage rate, subject
to taxes, and the other portion as Payments consisting of a non-taxable sum based on
the applicable Payment Plan mileage rate for days spent driving away from home
overnight. Drivers electing not to participate in the Payment Plan received all of their
pay, based on various per-mile rates, subject to employment and income taxes. To
the extent non-participating drivers incurred meal and other incidental expenses while
traveling, such expenses could be validated with receipts and deducted on their
annual income tax returns. Participating drivers, however, could only deduct such
expenses on their annual tax returns when the expenses exceeded their Payments,
which sums were subject to the daily limit imposed by the federal meal and incidental
expenses (M&IE) rate. Werner asserted in this action that it established its Payment
Plan as a recruiting tool to attract drivers, as other trucking companies operated
similar plans providing untaxed payments for meals and incidental expenses.

       The impetus for the instant action is Werner's inclusion of these Payments in
its minimum wage calculation under the Fair Labor Standards Act (FLSA), the
Nebraska Wage and Hour Act (NWHA), and the Nebraska Wage Payment and
Collection Act (NWPCA). According to the class, because these Payments are
reimbursements for traveling expenses incurred by them in furtherance of Werner's
interests, they should be excluded from the regular rate calculation established under
the FLSA and supporting Department of Labor (DOL) regulations as well as the
NWHA. If such exclusion is accomplished, and the Payments made by Werner
cannot be used to offset the calculation of minimum wages due, the class drivers

                                          -3-
assert that they do not make a minimum wage. Werner disagrees, representing that
for purposes of calculating the employees' regular rate in determination of minimum
wage requirements, these same Payments are not reimbursement for reasonable travel
expenses, but rather are wages, since they actually compensate the class drivers for
services rendered.

      Indeed, the class focuses a large part of its argument on what it claims is
Werner's contradictory stance under the FLSA, wherein Werner describes these same
Payments as payments that are not reimbursement for reasonable travel expenses for
purposes of the employees' regular rate calculation, but rather are remuneration for
services (i.e., wages). According to the class, the representations Werner made to the
IRS (that these Payments were reimbursement for travel expenses Werner reasonably
expected its drivers to incur) and those it made to the DOL are legally incongruent
and the Payments should be excluded from the regular pay rate calculation under the
FLSA.

      Reviewing the statutory scheme of the FLSA and the supporting DOL
regulations, the district court held that to determine whether the Payments are
included in the regular rate calculation, it had to evaluate 1) whether the Payments
were reimbursements for expenses incurred solely for Werner's benefit or
convenience; and 2) whether the Payments approximated actual expenses. Breaking
the analysis down, and relying on the persuasive authority of the DOL Field
Operations Handbook (DOL Handbook) as well as court precedent analyzing per
diem payments and regular rate calculations, the district court held that the Payments
were part of the regular rate. The fact that these Payments at all times reflected hours
worked and functioned as a wage rather than a true per diem expense reimbursement,
and also that the Payments plus the taxable wage received by the participating
employees were "suspiciously close" to the total taxable wage of nonparticipants was
equally persuasive in the court's evaluation of the matter. All these indicators pointed



                                          -4-
the court toward a conclusion that the form and purpose of the Payments were
intended to act as remuneration for work performed under the FLSA.

       The court rejected the class's judicial estoppel argument as well, succinctly
stating that the IRS regulations governing accountable plans are not necessarily
compatible with the DOL regulations governing employees' regular rates for
minimum wage purposes. Thus Werner did not (indeed, could not) take an
inconsistent position in its representations to the various agencies. Based on similar
analyses, the court likewise dismissed the class claims under the NWHA and the
NWPCA. The class appeals.

II.   DISCUSSION

      A.     Standard of Review

       The class asserts that the district court erred in granting Werner's motion for
summary judgment. We review a grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party, and drawing all
reasonable inferences in their favor. Lindeman v. St. Luke's Hosp. of Kan. City, 899
F.3d 603, 605 (8th Cir. 2018). We will affirm if "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). The class argues that the district court erred in finding that reasonable
Payments made by Werner for traveling expenses it reasonably expected its over-the-
road truck drivers to incur could be used to offset minimum wages due. It claims the
court ignored binding admissions and evidence in its analysis regarding these
Payments and failed to estop Werner from characterizing the Payments in any way
other than as it did prior to this litigation.




                                         -5-
      B.     "Binding Admissions" and Judicial Estoppel

       A primary thrust of the class's argument on appeal rests on what the class
believes to be binding admissions made by Werner to the IRS regarding the Payments
as well as statements made during the course of this litigation. It further contends that
these admissions alone are "all that is needed to exclude the Payments from wages."
It claims that the only evidence in the record demonstrates that the per diem Payments
were solely designed to provide a living allowance or reimbursement for the expenses
drivers incurred while over-the-road on Werner's business and Werner must be held
to that representation, either because they are legally bound, or simply as a matter of
common sense. And, as discussed below, if held to a particular understanding of its
IRS representations, the class argues that the Payments must be excluded from the
regular rate calculation under the FLSA. As a matter of law, however, judicial
estoppel does not apply in this matter. Contrary to the position advocated by the
class, Werner is not bound to previous statements in such a way that affects the
outcome of this case.

        "The doctrine of judicial estoppel prevents a party who 'assumes a certain
position in a legal proceeding, and succeeds in maintaining that position,' from later
'assum[ing] a contrary position.'" Scudder v. Dolgencorp, LLC, 900 F.3d 1000, 1006
(8th Cir. 2018) (alteration in original) (quoting New Hampshire v. Maine, 532 U.S.
742, 749 (2001)). Three considerations "typically inform the decision whether to
apply the doctrine in a particular case:" 1) "a party's later position must be clearly
inconsistent with its earlier position," 2) whether the party "succeeded in persuading
a court to accept that party's earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would create the perception that either the
first or the second court was misled," and 3) "whether the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped." New Hampshire v. Maine, 532 U.S. 742, 750-
51 (2001) (quotations omitted).

                                          -6-
       Werner's prior representations to the IRS were not clearly inconsistent with
those taken here. The IRS regulations governing accountable plans are not identical
to the DOL regulations governing the calculation of employees' regular rates for
minimum wage purposes. There are legal differences and, in the case of a regular rate
calculation, many additional factors at play. The two findings are not coextensive and
thus a finding in one does not negate or direct a finding in the other. Accordingly,
because there are legal differences, there is no inconsistency in Werner's positions
before the agencies and its representations do not support estoppel.

       Outside of a legal estoppel theory, the class advances that Werner is otherwise
prohibited from describing the Payments as they do in this wage-and-hour case
because they simply and blatantly contradict earlier representations to the IRS–a
"quasi-estoppel" theory. Amtrust, Inc. v. Larson, 388 F.3d 594, 601 (8th Cir. 2004)
("'Quasi-estoppel' has been invoked by various courts to estop parties from asserting
a position in judicial proceedings different than what was reported on their income
tax returns."). However, as just noted, these positions are not inconsistent so even
if we would adopt a quasi-judicial theory here, it has no application on these facts.
To be sure, the representations to the IRS regarding these reimbursements for
purposes of establishing an accountable plan, and the discussion of how to calculate
these same per diem Payments for the purpose of a regular rate determination under
the FLSA are close, and discussion of these Payments, and their purpose, in each
situation could be confusing. Despite the similarity, it was reasonable for the district
court, viewing the statutory schemes in play and the facts of this case, to hold that
Werner is not estopped in these circumstances, nor beholden to earlier representations
in a legally binding way. We do not turn a blind eye to Werner's earlier
representations but we equally do not lose sight of the query at the heart of this
action.

       What Werner anticipated its drivers would incur for business expenses in
establishing its accountable plan, see Treas. Reg. 1.62-2(d)(3)(i), is not synonymous

                                          -7-
with how Werner must calculate its employees' regular pay rate under the FLSA.
Although both calculations require an analysis of how to treat per diem allowances,
they are done for different purposes and under entirely unique regulatory schemes.
Werner's communications with the IRS regarding per diem allowances were for the
purpose of exemption from employment taxation of Werner's reimbursement of
employee travel expenses under an accountable plan. However, under the FLSA, the
analysis of per diem allowances was for the purpose of computing its employees
regular pay rate. The class's attempt to conflate Werner's words and representations,
out of context, is misplaced and "in no way binds this court in this case." Acton v.
City of Columbia, Mo., 436 F.3d 969, 978 & n.11 (8th Cir. 2006) ("[T]he
'remuneration for employment' determination [under the FLSA] is a highly fact-
intensive question that focuses narrowly on the specific operation of the program at
issue . . ."). Having determined that Werner is not cabined in the instant case to a
particular representation of "reimbursement" as might have been germane in previous
IRS proceedings, we move to the matter at hand.3

      C.     Minimum Wage

       The determinative discussion concerns how these Payments fit within the
FLSA "regular rate" rubric. The FLSA requires that every employer engaged in
commerce pay a statutorily mandated minimum wage. 29 U.S.C. § 206. An employer
violates the FLSA's minimum wage requirement when an employee's "regular rate"


      3
        As to the class's remaining arguments regarding the legal relevance of
Werner's representations in matching contributions in its employees' 401(k)
retirement accounts, its alleged representations in its unemployment reporting, and
labels given the Payments by Werner in its corporate literature, these arguments fail
for the same reasons as just indicated. The requirements of judicial estoppel are not
met. Scudder, 900 F.3d at 1006-07. Any representations made by Werner in prior
contexts mentioned here, though relevant to an extent, are not legally binding in our
instant inquiry.

                                         -8-
drops below the minimum wage. Id. §§ 206, 207. Section 207 defines the regular
rate, stating "[a]s used in this section the 'regular rate' at which an employee is
employed shall be deemed to include all remuneration for employment paid to, or on
behalf of, the employee," provided that such remuneration is not prohibited by one
of eight statutory exclusions listed under § 207(e)(1)-(8). 29 U.S.C. § 207(e).
Relevant here, § 207(e)(2) excludes reimbursements for certain expenses incurred by
an employee in the furtherance of the employer's interests, including "reasonable
payments for traveling expenses, or other expenses, incurred by an employee in
furtherance of his employer's interests and properly reimbursable by the employer;
and other similar payments to an employee which are not made as compensation for
his hours of employment." Id. § 207(e)(2). Regarding such reimbursements, the
language contained in the Code of Federal Regulations reiterates these exclusions, but
likewise makes clear that not all payments for expenses incurred while an employee
is away from home are excluded from the employee's regular rate for minimum wage
purposes. For example, 29 C.F.R. § 778.217(d) explains:

      The expenses for which reimbursement is made must in order to merit
      exclusion from the regular rate under this section, be expenses incurred
      by the employee on the employer's behalf or for his benefit or
      convenience. If the employer reimburses the employee for expenses
      normally incurred by the employee for his own benefit, he is, of course,
      increasing the employee's regular rate thereby.

Accordingly, because a per diem either can be excluded from, or included in, a
regular wage depending on myriad factors and purposes, a case-specific factual
inquiry is necessary. See Berry v. Excel Group, Inc., 288 F.3d 252, 254 (5th Cir.
2002) ("From the language of the FLSA itself and the related regulations, we find that
the Act requires each employee's expenses to be examined on a case-by-case basis to
see whether the "per diem" is appropriate and reasonable.").




                                         -9-
       Noted above, the class claims that the legal issue before us is whether the
Payments made by Werner, "labeled as reimbursements on every paystub issued to
every class member, explained as reimbursements in Company-provided literature,
found to be legitimate reimbursements during an IRS audit, and treated by [Werner]
as reimbursements (not compensation) for all tax-withholding, benefit, and
unemployment purposes, may constitute something other than reimbursements for the
purpose of complying with the FLSA and Nebraska law." They claim these Payments
clearly fall within the § 207(e)(2) exception, end of story. But, that recitation is not
finely on point. The only legal issue before the court is whether these Payments are
included in Werner's regular rate calculation; whether they are indeed remuneration
for employment under the FLSA. Resolving this matter, in part, includes discussion
of reimbursements as defined under the FLSA and how, particularly, they should be
handled, and even includes discussion as to how Werner has represented these
Payments for various purposes in the past, but our conclusion does not rise and fall
upon that latter point uniquely or in isolation.

       There are many factors in a determination under the FLSA as to whether a
payment is included in the regular rate calculation. The basic inquiry is whether the
challenged Payments constitute remuneration for employment, and, if so, whether
they are nevertheless excluded by one or more of the statutory exceptions enumerated
under § 207(e)(1)-(8). 29 U.S.C. § 207; Acton, 436 F.3d at 977 n.9. "There is a
statutory presumption 'that remuneration in any form is included in the regular rate
calculation.'" Acton, 436 F.3d at 976 (quoting Madison v. Res. for Human Dev., Inc.,
233 F.3d 175, 187 (3d Cir. 2000)). The district court held that these Payments are
remuneration for employment and are not excepted from the regular rate calculation.
We agree.

     This case rises and falls on the "exception" piece of the puzzle, or lack thereof,
more accurately. The class argues the district court erred because reasonable
payments for travel expenses do not constitute wages under the FLSA and Nebraska

                                         -10-
law and claim the court erred in failing to hold that the Payments are excepted by §
207(e)(2). They argue the district court failed to consider whether the exclusion
applied at all in this case. But this is not so. The district court based its analysis on
determining whether the Payments should be excepted from the regular rate
calculation, evaluating 1) whether the Payments were reimbursements for expenses
incurred solely for Werner's benefit or convenience; and 2) whether the Payments
approximated actual expenses. See 29 C.F.R. § 778.217(a).4

      One key determinant driving the matter is that these Payments are based upon
hours worked (i.e., miles driven) and are thus correctly included in the regular rate
calculation, at least for the experienced drivers paid accordingly. Too, these
Payments function as a wage rather than as true per diem reimbursements.

       Per diem payments that vary with the amount of work performed are part of the
regular rate. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1041-42 (5th Cir.
2010); Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 35-37 (1st Cir.
2014). Because Werner tied the Payments to the miles driven, i.e., work performed,
the present case is distinguishable from those in which employers did not "tie[] per
diem payments to the amount of hours that employees worked." Sharp v. CGG Land
(U.S.) Inc., 840 F.3d 1211, 1215, 1216 (10th Cir. 2016) ("Employees do not receive
higher per diem payments after working longer hours. And it bears repeating that the
Parties stipulated that the payments were reasonable payments for meals. Here,
Employees traveled to remote job sites away from home to perform lengthy work
stints for CGG. While away from home, Employees incurred meal expenses while
serving CGG as employees and while furthering CGG's interests. For all the reasons
stated, these travel expenses are exempt under 29 U.S.C. § 207(e)(2).").

      4
       Part 778 of the Code of Federal Regulations contains the DOL interpretive
regulations, which do not have the force of law. They are, however, entitled to
respect to the extent they are persuasive. 29 C.F.R. § 778.1; Madison v. Res. for
Human Dev., Inc., 233 F.3d 175, 185-86 (3d Cir. 2000).

                                          -11-
       The class takes issue with the district court's review of these cases and other
authority discussing reimbursements in cases reviewing similar payments in the
context of overtime calculations. Often in the normal course, discussions involving
the inclusion, or not, of per diem payments in the regular rate occur in cases where
employees are challenging an employer's exclusion of the payments from their regular
rate and the challenging employees seek to have them included for purposes of
overtime and raising an hourly wage rate. That the class seeks the opposite in this
action is a distinction without a difference because the calculation of the regular rate
is a factual analysis and remains unchanged.

       These regular rate and minimum wage calculations are discussed similarly
regardless of the situation, as what may or may not be included in the wage
calculation in the first instance applies in each query. 29 C.F.R. § 779.419(b) (the
"regular rate" is the hourly rate an employee is actually paid for the normal,
nonovertime workweek for which he is employed); 29 U.S.C. §§ 206(a) (establishing
minimum wage requirements, which necessarily require a calculation of the regular
rate) and 207(a) (explaining that if an employee works in excess of forty hours a
week, the employee must "receive[] compensation for his employment in excess of
[forty hours] at a rate not less than one and one-half times the regular rate at which
he is employed"); see also Stein v. hhgregg, Inc., 873 F.3d 523, 537 (6th Cir. 2017)
("Assuming a week-long pay period, the minimum wage requirement is generally met
when an employee's total compensation for the week divided by the total number of
hours worked equals or exceeds the required hourly minimum wage, and the overtime
requirements are met where total compensation for hours worked in excess of the first
forty hours equals or exceeds one and one-half times the minimum wage.").
Accordingly, although the context in which these terms are discussed might vary
under the FLSA, the legal standards do not.




                                         -12-
         The DOL Handbook contains guidance in our inquiry. We treat the DOL
Handbook as persuasive authority. "Interpretations such as those in opinion
letters–like interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law–do not warrant Chevron-
style deference," Christensen v. Harris County, 529 U.S. 576, 587 (2000), but are
entitled to respect under Skidmore v. Swift & Co., 323 U.S. 134 (1944), based on
their persuasiveness. Christensen, 529 U.S. at 587. We agree with the class that just
like the DOL regulations in part 778 of the Code of Federal Regulations, the
provisions in the DOL Handbook are not dispositive but we do find them persuasive.
The DOL Handbook "is an operations manual that provides Wage and Hour Division
. . . investigators and staff with interpretations of statutory provisions, . . . and general
administrative guidance." Field Operations Handbook (FOH), United States Dep't
of Labor, https://www.dol.gov/whd/FOH/index.htm. We do not discount the
expertise offered by the DOL, as it handles and regulates the application of the FLSA.

       Section 32d05a(c) of the DOL Handbook provides that "[i]f the amount of per
diem or other subsistence payment is based upon and thus varies with the number of
hours worked per day or week, such payments are a part of the regular rate in their
entirety." Applying this factor, it is the method of calculating the per diem–the
measuring unit used–that informs a determination regarding whether or not the
Payment is treated as a wage included in the regular rate. The DOL Handbook thus
reinforces the thrust that at the end of the day under the FLSA, one important
criterion is whether a payment is remuneration for employment, or not.5 Here, no


       5
       This determination is reinforced by the DOL's explanation in 29 C.F.R. §
778.224 that the "other similar payments" included in § 207(e)(2)'s exception was not
intended to permit the exclusion from the regular rate, payments such as bonuses, that
though they are not directly attributable to any particular hours of work, nevertheless
are clearly understood to be compensation for services. This interpretation
presupposes and directly explains that the basic types of payments excluded from the


                                            -13-
matter that Werner's Payments were established to reimburse expenses the company
reasonably expected its employees to incur, for purposes of the FLSA, we must
further look to how these Payments were calculated for guidance. Because these
Payments for the experienced drivers are based upon the amount of work performed
(miles driven) they are part of the drivers' regular rate.

       Most notable in this case are the seemingly obvious indicators that these
Payments function as a wage. Foremost, the comparable pay indicates that the
Payments to the experienced and student drivers, alike, were remuneration for
employment included in the regular rate. The total pay–Payments plus applicable
taxable wage–to both participating experienced and student drivers, alike, was
suspiciously close to the taxable wage paid to non-participants. This same fact was
incredibly pertinent in Gagnon, where the court observed it would be "difficult to
believe that a skilled craftsman would accept a wage so close to the minimum wage
when the prevailing wage for similarly skilled craftsmen was approximately three
times the minimum wage." Gagnon, 607 F.3d at 1041. The court was also "troubled
by the fact that the combined 'straight time' and 'per diem' hourly rates approximately
match[ed] the prevailing wage for aircraft painters." Id. Here, too, we do not need
to expend much to acknowledge that these participating drivers' net pay, inclusive of
the Payments, was identical to, or close to, that of other employees who opted out of
the Payment Plan. Although those participating received artificially low taxable
wages, they were compensated for their hours of work when they participated in the
Payment Plan.

      Indeed, Werner established this Payment Plan, providing a portion of drivers'
pay tax free, so it could compete in the marketplace and provide its drivers similar


regular rate under § 207(e)(2) are payments "not made as compensation for hours of
work."


                                         -14-
benefits in its wages as those employers in its competitive market. The Payments
functioned as wages in its drivers' compensation, suggesting, if not establishing, that
the Payments were remuneration for employment, not excepted by § 207(e)(2).

        We additionally agree with the district court's highlighting of other factors that
led to the conclusion that these Payments function as wages including 1) that the form
and purpose suggest they were intended to act as remuneration for work performed,
2) the Payments were unrestricted in that the employees could spend the Payments
in any manner and were not required to report expenses or provide receipts, and 3)
Werner introduced the Payments as a means to attract new employees by maximizing
take home pay. Each of these factors additionally establish that the Payments were
remuneration for employment rather than reimbursement for expenses. See B&D
Contracting v. Pearley, 548 F.3d 338, 343 (5th Cir. 2008) (determining that a per
diem payment "played the role of wages" because the payments: were calculated on
hours worked; paid in the same paycheck as normal wages; were unrestricted;
unrelated to actual costs of meals, lodging, or travel; were paid to all employees
without limitation; and constituted almost half of the employee's gross pay).

       In addition to providing a benefit of tax free payments based on a reasonable
estimation of travel expenses, these Payments clearly serve as wages under the FLSA.
These Payments do not fall squarely under the exception described in § 207(e)(2)
wherein a payment for traveling expenses previously incurred by an employee in
furtherance of his employer's interests is reimbursed and excluded from the regular
rate calculation, primarily because these Payments are made as compensation for
hours of employment. 29 U.S.C. § 207(e)(2). Under the FLSA, these Payments are
thus remuneration for employment that should be included in Werner's minimum
wage calculation. The district court did not err in its analysis and we affirm its
similar conclusion.




                                          -15-
       D.    State Law Claims

       The NWHA requires that each employee entitled to its benefits receive "wages"
that are at least at the statutory minimum wage level. Neb. Rev. Stat. § 48-1203.
"Wages shall mean all remuneration for personal services, including commissions and
bonuses and the cash value of all remunerations in any medium other than cash." Id.
§ 48-1202(5). The NWPCA, also cited by the class, provides a cause of action for
employees to recover unpaid wages. Id. § 48-1231(1). The NWPCA permits an
employee to recover wages an employer previously agreed to pay, id., and defines
wages as "compensation for labor or services rendered by an employee . . . when
previously agreed to and conditions stipulated have been met." Id. § 48-1229(4);
Eikmeier v. City of Omaha, 783 N.W.2d 795, 798 (Neb. 2010). On appeal, the class
vaguely claims the district court erred in dismissing their state law NWPCA and
NWHA claims for the reasons they argue the court erred on their federal claims.

      The class's success in their state law claims is dependent upon establishing that
the only wage they received was the taxable portion of their pay–the portion
exclusive of the Payments. On these facts, the reasoning set out above discussing the
matter under the FLSA rubric forecloses the class's state law claims as well. See
Logan v. Rocky Mountain Rental, 524 N.W.2d 816, 819 (Neb. Ct. App. 1994)
(holding in the similarly applicable context of defining wages for workers'
compensation that a per diem payment was a wage, even though not taxed as income,
because the driver did not have to account for the payment with receipts or other such
proof). For these reasons, we likewise affirm the district court's dismissal of the state
law claims.

III.   CONCLUSION

       For the reasons stated herein, we affirm.



                                          -16-
COLLOTON, Circuit Judge, concurring.

        On the question of judicial estoppel, the court holds that “Werner’s prior
representations to the IRS were not clearly inconsistent with those taken here,” ante,
at 7, so estoppel does not apply. As the district court put it, Werner’s representations
to the IRS concerned the amount of expenses that an employee was reasonably
expected to incur, while the Department of Labor regulations applicable here required
the court to assess whether the company’s payments approximated expenses that
employees actually incurred. R. Doc. 391, at 36. That said, we do not address
whether the company’s twin positions are sustainable going forward. It presumably
will be for the IRS to determine whether to accept future statements by the company
about what expenses are expected in light of data showing what expenses were
actually incurred during recent periods.
                        ______________________________




                                         -17-
