Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

Pennsylvania’s Minimum Wage law requires that employees who work in excess of 40 hours in a workweek be paid overtime at the rate of 1½ times the worker’s regular rate of pay. The law exempts “ [d]omestic services in or about the private home of the employer” from the minimum wage and overtime requirements. According to regulations enacted by the PA Department of Labor and Industry (“DOLI”), however, the exemption applies only to the services of aides who are hired directly by the householder, not to the services of aides who work for a third party agency. On November 17, 2010, in Bayada Nurses, Inc v. Department of Labor and Industry, the Pennsylvania Supreme Court unanimously upheld DOLI regulations as consistent with the intent of state law and held that a home health agency cannot rely on the “domestic services” exemption to avoid paying overtime to its home health aides because it is a third party agency employer.

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On October 13, 2010, Governor Rendell signed into law the Construction Workplace Misclassification Act. The Act curtails the circumstances under which a construction worker may be classified as an independent contractor for purposes of workers’ compensation and unemployment insurance.

Under the Act, to be classified as an independent contractor, a construction worker must meet three criteria: (1) have a written contract to perform services; (2) be free from the hiring party’s control or direction when performing such services; and (3) be customarily engaged in an independently established trade, occupation, profession or business.

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Kellogg Company (Kellogg) was granted summary judgment and dismissal of claims raised by a manufacturing employee in its Rossville, Tennessee manufacturing plant. In Franklin v. Kellogg Company, C.A. No. 08-2268 (W.D.Tenn.), the district court held that time spent by manufacturing employees changing into and out of company-issued gear was noncompensable under Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. This is because Section 3(o) excludes time spent by employees donning and doffing “clothes” from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement.

Plaintiff Alice Franklin claimed that she was entitled to compensation for time spent changing into and out of company uniforms and other gear both prior to and after her work shifts. She sought to represent Kellogg employees on a nationwide basis. Ms. Franklin’s motion to certify a collective action under the FLSA, however, was rendered moot by the court’s finding in favor of Kellogg. As an initial matter, the court found that the company uniform and standard equipment used by the plaintiff constituted “clothes” under Section 3(o). The uniforms in question consisted of pants, snap front shirts and slip-resistant shoes and the standard equipment included hair nets, beard nets, safety glasses, ear plugs and bump caps. The court relied on its prior decision in Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001 (W.D.Tenn. 2008), holding that protective gear worn by meat processing employees fell under the definition of clothes under Section 3(o). It found that plaintiffs failed to present any compelling reason to reconsider that holding.

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Michael Truman was a Pennsylvania resident who worked as a management consultant for 16 months for a Texas-based management consulting company. He was assigned to client projects at client sites, including a six-month assignment in England and a one-week assignment in Canada.

After resigning, he sued the company, claiming that he had been misclassified as exempt and was owed overtime under the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA). The company sought partial summary judgment as to the time periods that Turner had spent working in England and Canada, arguing that the FLSA and PMWA did not apply outside of the United States.

The court granted the motion as to Turner's FLSA claim based on the FLSA's exemption for work performed outside of the United States. 29 U.S.C. 213(f). However, the court denied summary judgment as to Turner's PMWA claim. The court reasoned that, unlike the FLSA, the PMWA contains no express exemption for work performed outside of the United States, and the court would not infer one, noting that the PMWA was originally enacted to protect employees who were not protected by the FLSA and that state law may provide greater protection to employees than the FLSA. The court concluded that while the PMWA was silent as to its extra-territorial reach, it should be construed to provide protection to Pennsylvania based-employees while they are working on assignments outside of the United States.

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A federal district court ruled that hourly production and maintenance workers at U.S. Steel’s Clariton, Pennsylvania coke plant were not entitled to compensation for time spent donning, doffing, and showering at the beginning and end of their work days under Section 3(o) of the Fair Labor Standards Act (“FLSA”). Section 3(o) effectively excludes time spent by employees donning and doffing “clothes” or washing time from compensable hours worked where such time is either explicitly addressed in a collective bargaining agreement, or by custom or practice established under a collective bargaining agreement. The FLSA does not define the term “clothes,” and many courts have disagreed over what constitutes changing clothes.

In Andrako v. United Steel Corp., plaintiffs brought an FLSA collective action alleging violations based on the company’s failure to compensate for donning and doffing certain protective equipment, showering time, and time spent walking to and from their working stations. The court held that the items donned and doffed by U.S. Steel workers plainly were clothes within the meaning of the statue. In making its determination, the court noted that it was applying a common and ordinary meaning of the term. The items in question included safety glasses, hard hats, flame retardant jackets and pants, flame resistant gloves, hearing protection, snoods or hoods, wristlets, and respirators. The court rejected plaintiffs’ narrow construction that Section 3(o) should not apply to any apparel or equipment intended for protection and/or required by the employer or law. Similarly, the court rejected the plaintiffs’ argument that showering does not fall with Section 3(o)’s exception for washing time.

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The federal minimum wage is set to increase to $7.25 on July 24, 2009. Additionally, 23 states will also increase the minimum wage for employers subject to state wage and hour laws. The majority of these increases take effect on July 24, 2009, but three states raise their minimum wage effective July 1, 2009.

In addition to noting the wage increase, employers should ensure that they are properly displaying a copy of the state’s current minimum wage poster in a conspicuous location in the workplace that notes the wage increase, even if the increase will not affect hourly employees at any particular workplace.

The following states have increased their state minimum wage:

Delaware
• $7.25/hr. effective 7/24/09

District of Columbia
• $8.25/hr. effective 7/24/09

Federal
• $7.25/hr. effective 7/24/09

Florida
• $7.25/hr. effective 7/24/2009

Idaho
• $7.25/hr. effective 7/24/09

Illinois
• $8.00/hr. effective 7/1/09

Indiana
• $7.25/hr. effective 7/24/09

Kentucky
• $7.25/hr. effective 7/1/09

Maryland
• $7.25/hr. effective 7/24/09

Missouri
• $7.25/hr. effective 7/24/09

Montana
• $7.25/hr. effective 7/24/09

Nebraska
• $7.25/hr. effective 7/24/09

Nevada
• If health benefits are available:
Effective 7/1/09 $6.55/hr (employers subject to the FLSA should see federal requirements)
• If the employer does not provide qualified health benefits:
Effective 7/1/09 $7.55/hr

New Jersey
• $7.25/hr. effective 7/24/09

New York
• $7.25/hr. effective 7/24/2009

North Carolina
• $7.25/hr. effective 7/24/09

North Dakota
• $7.25/hr. effective 7/24/09

Oklahoma
• $7.25/hr. effective 7/24/09

Pennsylvania
• $7.25/hr. (large employers) effective 7/24/09
• $7.25/hr. (small employers) effective 7/24/09

South Dakota
• $7.25/hr. effective 7/24/09

Texas
• $7.25/hr. effective 7/24/09

Utah
• $7.25/hr. effective 7/24/09

Virginia
• $7.25/hr. effective 7/24/09

Wisconsin
• $7.25/hr effective 7/24/09
 

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