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Wage Theft: No Bad Intent but Ignorance is No Defense


Please see letter to the editor on wage theft in the absence of bad intent:

 

http://www.philly.com/philly/opinion/20110708_Letters_to_the_Editor.html?viewAll=y

 

The letter/blog should not be construed as legal advice, establishing an attorney-client relationship or applying to specific factual situations.

 
 
 
 

PA Act 102: Prohibition On Mandatory Overtime Covers More Than FLSA Overtime


Pennsylvania Act 102 covers health care providers (broadly defined) in Pennsylvania.  It prohibits covered employers from mandating that covered employees work "overtime" except under certain limited circumstances.

Generally speaking, covered employees include employees directly involved in direct patient care and other clinical services.  Employees not covered by Act 102 include, but are not limited to,  physicians, physician assistants and patient care/clinical supervisors who are paid on a salaried (but not hourly) basis.

A common area of misunderstanding is what is meant by mandatory overtime under Act 102.  The definition of mandatory overtime under Act 102 is not based on the FLSA.  In other words, it does not mean work in excess of 40 hours in a work week. Instead, Act 102 defines mandatory overtime to mean work in excess of the employee’s “agreed to, predetermined, and regularly scheduled daily work shift.”

For example, assume a covered employee works three 10-hours shifts as agreed to upon hire.  Assume further that the covered employee's replacement is late so his employer wants him to work additional time until his replacement arrives.

This additional time, in most circumstances, would constitute overtime under Act 102, even thought it would not result in the employee's working overtime in the work week as defined by the FLSA.  The employee could agree to work the "overtime" voluntarily or the employer could mandate that the employee work the "overtime" involuntarily if one of the narrow exceptions to mandatory overtime were to apply (for example, unexpected absences, discovered at or before the commencement of a scheduled shift, which could not be prudently planned for by an employer and which would significantly affect patient safety.)

The bottom line is that, even if a health care provider that does not mandate overtime as defined by the FLSA, the health care provider may be covered by Act 102 if it requires that a covered employee remain beyond her or his agreed to, predetermined and regularly scheduled shift.  This is all but inevitable in most health care institutions.

Health care providers who have only voluntary overtime in the FLSA sense need to take a second look at Act 102 and develop, if not a policy, then at least an internal protocol to comply with it. 

Three (3) final notes:

  1. If employee works Act 102 overtime, that does not translate into duty to pay overtime under FLSA. Generally, an employee in Pennsylvania  is eligible for overtime under the FLSA only if he or she works in excess of 40 hours in a work week
  2. Rather than paying overtime after 40 hours in a work week, some employers follow the federal 8 and 80 overtime rules.  Whether this alternative manner of computing overtime is available in Pennsylvania  is unclear and one Philadelphia court has said it is not an option for Pennsylvania employers.  While the Philadelphia decision is binding only in Philadelphia, lawyers in other counties may rely upon the decision to challenge 8 and 80 overtime in such counties.
  3. Many states other than Pennsylvania, such as New Jersey, have rules that restrict mandatory overtime in health care. In most of these states, like Pennsylvania, overtime as defined  by the state law differs from overtime under the FLSA.  

This blog should not be construed as legal advice or as pertaining to specific factual situations.

 
 
 
 
 

Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.