First of all, I need to make my usual disclaimer that I am not an employment law attorney, nor do I know anything about the RLA, which always throws a wrench into any discussions regarding pilot pay. I also am not privy to any negotiations done by the unions on behalf of its members, although I can hardly believe that something so fundamental would be negotiated away or watered down as to be meaningless.

The FMLA references the FLSA in the determination of whether the 1,250 hours of service have been achieved. The FLSA defines "Hours Worked" as "covered employees must be paid for all hours worked in a workweek. In general, "hours worked" includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. Also included is any additional time the employee is suffered or permitted to work."

Regarding recordkeeping, The FLSA requires employers to keep records on wages, hours, and other items, as specified in Department of Labor recordkeeping regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations. The records do not have to be kept in any particular form and time clocks need not be used. With respect to an employee subject to
both minimum wage and overtime pay provisions, the following records must be kept:

(1) personal information, including employee's name, home address,
occupation, sex, and birth date (if under 19 years of age);

(2) hour and day when workweek begins;

(3) total hours worked each workday and each workweek;

(4) total daily or weekly straight-time earnings;

(5) regular hourly pay rate for any week when overtime is worked;

(6) total overtime pay for the workweek;

(7) deductions from or additions to wages;

(8) total wages paid each pay period; and

(9) date of payment and pay period covered.

Records required for exempt employees differ from those for nonexempt
workers, and special information is required for homeworkers, for
employees working under uncommon pay arrangements, for employees to whom
lodging or other facilities are furnished, or for employees receiving
remedial education.

Note that the FLSA does not address "per diem" specifically and concerns itself more with minimum pay (which might be of interest to some regional pilots if the postings on the forum are to be believed), overtime pay, record-keeping and child labor standards. There is at least one published decision wherein a government employee of the Bureau of Land Management filed a claim against his employer alleging a willful violation of parts of the FLSA. The Merit Systems Oversight Division wrote a letter to the claimant, in part, "As we explained in our acceptance letter to the claimant (dated August 21, 1998), his claim for additional Sunday pay and night differential pay, and questions about per diem pay while on travel are not covered by the FLSA and therefore are not discussed in the following decision." (italics added).

My suggestion is to speak with the legal department at ALPA for their interpretation. If I were your attorney, I would certainly make the "hours worked" and "records kept in the ordinary course of business" arguments. Again, I do not practice employment law and anything I have said here cannot be construed as legal advice.