Is Your Paycheck Short?

Note:  This is part of a series of posts detailing the 2009 Pennsylvania budget impasse.  To see all posts in this series, click here.

If you are a state employee whose paycheck is short due to the budget impasse, you should contact the US Department of Labor immediately and file a complaint.  They can be reached at 570-826-6316 (Wilkes-Barre), 215-597-4950 (Philadelphia), or 412-395-4996 (Pittsburgh).  I suggest not calling during your scheduled working hours.  Either take personal time to file your complaint or, if that’s not possible, do so on your lunch break or before or after work.

Judicial interpretation of the Fair Labor Standards Act says that you must be paid in full on your regular payday.  Garcia v. San Antonio Metropolitan Transit Authority (49 U.S. 528 (1985)) established that government employees are covered under the FLSA.  And contrary to what the Rendell administration (and AFSCME) are saying, the Court did not say that the state constitution overrules federal law (read the decision for yourself right here).

I can not say for certain whether or not filing a claim through the US DOL forfeits any claim you may have to liquidated damages.  That is a subject that you should discuss with a competent lawyer.  However, it is my understanding that because of the 10th Amendment, no individual may bring a civil suit against the state anyway, so I believe the US DOL is your only option.

Be careful not to confuse the PA Department of Labor & Industry with the US Department of Labor.  The PA DL&I can not handle your claim; only the US DOL can.  I am fairly certain that the PA Wage Payment & Collection Act does not apply to employees of the commonwealth.

Good luck.  Please feel free to comment below (I recommend against posting your last name or work email address) and let us know how your complaint went.  In the meantime, keep hammering away at your legislators and governor for a budget.

33 thoughts on “Is Your Paycheck Short?”

  1. FYI: The FLSA itself provides for protection for people complaining…kind of a whistleblower protection. There are penalties for retaliation. That said…an employer can pretty much get rid of you if they don’t like the color of your eyes (unless your union is inclined to intervene) and it can be difficult to prove you are not guilty of what the company says they are firing you for. SO BE CAREFUL!

    Somebody posted on one of the other threads here the other day that they contacted DOL who told them if their paycheck across the 2 week pay period is greater than the number of hours times the minimum wage (and the Feds will honor Pennsylvanias higher minimum BTW) you won’t have a complaint till next pay period when you receive a paycheck lower than the minimum wage. Well, my husband and I will challenge that when we call a bit later.

    It is true, under FLSA the Federal Government will only collect or pursue that which is equivalent to the prevailing higher minimum wage. So simplistically, what the other poster was told is true. However. The pay stub CLEARLY identifies 22.5 hours as LWOP (Leave without pay) which are hours which they are plainly stating that you were not paid for.

    Furthermore, the Federal Government requires record keeping for purposes of wage payment of overtime. The State is essentially “incorrectly” attributing your status as an employee for purposes of payroll to Budget Impasse: LWOP…thereby misstating their records. The Federal DOL may or may not view that dimly…I can’t say…but were it me investigating I would take a dim view of it. So I plan to have my husband stress that (a) minimum wages were NOT paid for 3 days as identified on the pay stub and (b) his status in the payroll record keeping system is incorrect. He is NOT on leave..he is simply without pay while he works.

    Just food for thought.

  2. found this on SEIUs main page

    4. Why doesn’t the Fair Labor Standards Act (FLSA) require the Commonwealth to pay us for work we actually perform? The Commonwealth Court ruled that the FLSA does not protect our members from payless paydays during a period when there is no state

    budget. The ruling permits the Governor’s office to defer the payment of salaries and wages until a budget is enacted. Our appeal of that decision is currently before the Pa. Supreme Court. We have briefed the issues and the Court has granted oral argument but has not scheduled the hearing.

    The union lacks standing under the FLSA to file a class action on behalf of our members. State employees cannot sue the State for damages under the FLSA because the state has not consented to be sued under that law. The U.S. DOL can sue the state for damages and we are seeking their assistance in this area. The DOL is limited to seeking the equivalent of minimum wage, some other money damages plus injunctive relief.

  3. Steve…obviously NOT the minimum wage for 75 or 80 hours of work! The folks that got paid today, however, got about 70% of their classification pay as outlined in the Afscme contract. It exceeds minimum wage x 75 so if the simplistic view is taken by DOL your group of paychecks would be the first group able to file complaints. I’ll be on the phone when my husband calls today and I’ll be more insistent and ask for more answers (and argumentative for lack of a better word) than he’d be so I’ll post later where we get to. Dear man made an 8 am appointment across town for the car to be serviced. SIGH.

  4. Steve. Forget what SEIU says. The FLSA does not (ANYWHERE in it) address state budgets, the lack thereof or where any employer gets their revenue from to pay their employees. It simply says employers have an obligation to pay. They don’t give a rip that they don’t have money…they say shut down your business then and the monies owed will be pursued via injunctive relief.

    The Commonwealth ruling by Judge Leavitt said…the FLSA doesn’t talk to your budget. The State Constitution talks to your budget. The two do not conflict…the two do not address the same issues. Under the constitution you must not pay without a budget. The judge then cautions: bear in mind, if you do not pay then your employees have recourse and redress in the provisions of FLSA and the Federal DOL.

    It astonishes me that the unions continue to breathe life into the interpretation that the State has read into Judge Leavitt’s finding!

    If you will go to the floor9 homepage….look for the category cloud on the right side about half way down. IT’s a group of words, some larger than the other…find the word budget and click on it and you will find all the posts on budget here. In a couple of them the floor9 editorial staff has provided links to the actual court case and interpretation of them. You can read it for yourself, you don’t need to take my word for it or the unions. See what you think after you read it?!

  5. Hey guys,
    I’m not a state employee, but I just wanted to give my support. While walking to work this morning, I was really hoping that when I got in, I’d see a different post here, one that said they decided on a budget.

    Unfortunately, this was the post I found instead.

    This is a real shame, and a failure on our government’s part, and I for one, will be sure to have my voice heard come the next election. I’ve already written to several people in the capitol, but it seems letter writing doesn’t do the trick, so the ballot box is my next stop.

    Keep up all the hard work keeping the state running, and hopefully they’ll get this solved soon so you can all be compensated for the work you do.

  6. The Department of Labor in Wilkesbarre says they can only enforce minimum wage. So even though I make more than that, as long as my pay constitutes the amount of hours I worked x minimum wage, they cannot intercede. So since i was paid today for 7 of the 10 days, I meet at least the minimum wage requirement. I can’t file a complaint until 2 weeks from now with the Federal Department of Labor.

  7. I guess this is kind of good news for any Court employees. Today is our scheduled payday, but we are receiving ZERO pay.

    Does it matter which of the 3 offices you call? Do they have anything you can do online? It sure does seem to me the online ordeal would be the better way to go with something like this. God help the poor people that have to handle all of these phone calls that should be pouring in.

  8. Wilkes Barre must be inundated with calls. Our call to them has gone to voice mail.

    Worried, I’m not surprised…I’ve resorted to consulting the FLSA Field Handbooks and what you were told is exactly what was written in the field guide back in 1981.

    So it’s going to be up to our friends paid on the 24th to file a complaint to get the ball rolling. Their pay will definitely not equal the minimum wage calculation that you cited. So we’ve only lost a week…not two because the DOL can start to pressure Harrisburg on the 24th and will know that 7 days later another landslide of calls will come in seeking intervention.

    Since the budget was not signed by July 13 payroll doesn’t have time to process the run and get it through the Treasury funding process to make anything other than a partial pay on the 24th (unless they pull heroics off!). You can read that here:
    http://tinyurl.com/lsrffv

    Here’s some info on the HR website regarding what to expect relative to pays, service time etc
    http://tinyurl.com/3uelcs

  9. My husband and I just spoke with the Business Agent for the AFSCME local hubby is a member of. They contacted us as a result of the online forms we filled out.

    Upshot, AFSCME is doing what they can. Today, now that pays are short, they filed grievances on behalf of the folks who received short pay today. Next week, when more members pays are short or missing they will file on their behalf as well. I believe that she said the other unions are also doing the same. She explained grievances could not be filed earlier because no violation of the contract had taken place until today.

    She also explained that just as individuals cannot sue under FLSA, neither can the unions. Only the DOL can. And so the individual employees must be the ones to contact DOL and file a complaint.

    Bottom line…at the end of our discussion I did NOT feel like I was speaking to a union that was in bed with the fox at the head of Rendelland.

  10. Our call to DOL Wilkes Barre went to voice mail. They did the calculation just as worried said and told us the same thing. However, my husband asked about the coding of LWOP specifically…and that didn’t seem to matter. He remarked that this debacle in the State must be quite an embarassment to the current Democratic Administration in Washington and she then told him “We are negotiating with the State now to try to get this resolved”.

    So. While they wouldn’t take a complaint from us, there is apparently pressure being applied somewhere in Harrisburg and my guess is that anybody (esp any Democrat) in Harrisburg with future National political aspirations might be starting to pay attention.

  11. It is very unfortinute that it has come to this but people that work need to be paid what is rightfully theres bottomline. So thanks to the incompatance of our gov and leaders Tax payers will have to foot the bill for Damages and penailtys. Sorry if my spelling sux I’m just so furious and upset.

  12. PGM, ME TOO! Part of feeling furious and upset comes from the reality of the situation…but a large part comes from feeling powerless to change it. That’s why I refuse to accept that we are powerless and will leave no stone unturned in finding ways to ask the Putz to blink back. So let the actions that you can take and that are being taken on your behalf help to mitigate your anger!

    BTW…damages are not a given. If the DOL can talk him into releasing payroll and they don’t have to go to court for injunctive relief there won’t be any damages that taxpayers need to pay.

    He was on PCN over lunch. More of his cavalier rhetoric I am told. I am trying to see if I can find it streamed on the internet anywhere. I believe every state employee should see him and hear his remarks so they’ll be prepared to really delve into the background of the next candidates for governor!

  13. I find this really ironic that our governor is saying this.. due to the FACT THAT HE IS NOT PAYING COMMONWEALTH EMPLOYEES.. this PROVES he hates state workers:

    GOVERNOR RENDELL REMINDS BUSINESSES, EMPLOYEES OF JULY 24 MINIMUM WAGE INCREASE
    FEDERALLY MANDATED WAGE WILL RISE TO $7.25/HOUR

    HARRISBURG – Governor Edward G. Rendell today reminded Pennsylvania businesses and workers that the federally mandated minimum wage will increase to $7.25 per hour on July 24.

    Prior exemptions granted to small businesses — those who employ the equivalent of 10 or fewer full-time workers — ended more than one year ago, and these employees will be entitled to the new federal minimum wage. Additionally, a 60-day training wage paid to employees 20 years old and younger may no longer be used after July 23.

    “During these challenging economic times, the federal minimum wage increase is good news for some of the hardest-working men and women in Pennsylvania,” Governor Rendell said. “I am pleased that this increase is going into effect, and that our citizens who need it will receive better compensation for their work.”

    OMG you can’t be real ED? How much more blatant can you be? All I can say is this will be more $ for the state worker to sue. The way the Fed’s described it, your employer must be paying you AT LEASE min. wage for hours worked, regardless of what your salary is… or you can sue for double for the missing wages.

  14. “I am pleased that this increase is going into effect, and that our citizens who need it will receive better compensation for their work.”

    ohhh jeezzz this sickens me..

  15. EDDIE SAID THIS TODAY:

    “During these challenging economic times, the federal minimum wage increase is good news for some of the hardest-working men and women in Pennsylvania,” Governor Rendell said. “I am pleased that this increase is going into effect, and that our citizens who need it will receive better compensation for their work.”

    But he will not pay the State employees. This is very interesting.

  16. I spoke with DOL today and I was told that all they can get for us is minimum wage and that if that is what is given it could be considered as PAYEMENT IN FULL.

  17. @TheWickedOne, that is not correct. The Fair Labor Standards Act also covers matters like overtime pay and accurate recordkeeping. In addition, federal suits have been brought — and won — against employers who have failed to pay their employees on their regular paydays.

    In relation to the actual amount of payment, the FLSA only provides for minimum wage. Any matter beyond that is a breach of the labor agreement and thus a separate civil matter. However, what complicates this matter is the way that the state is providing the payment: They are handing out checks (on the 24th) for 15 hours at our standard rate and 60 hours unpaid. This is itemized in the accompanying pay stub.

    I suspect that the DOL may be unwilling to pursue a matter where a “total divided by 75 > minimum wage” situation exists, because it would require more effort to prosecute. That’s a matter for a court to decide at a later time. But for now, if the DOL is not acting on complaints received today, the rest of us will take it up on the 24th.

  18. Thanks to everyone for sharing. I did not call today, but I spoke w/ many people who did. I think by the end of the 10 o’clock break, they got the point and went to voicemail. lol

    Robin, I’m glad to read of your experience. I thought today would be a day of no legal progress, but the PEOPLE flexing their muscles. =)

    I spent my day trying to find a leave regulation. I want a DEFINITION of LWOP. That is a conversation-stopper. Aren’t there specific rights and responsibilities that go along with each of the job/leave statuses?

    The State seems to be taking us for granted. They keep painting the picture of LWOP as a minor, administrative (in)convenience. But I say we are in a different LEGAL status, w/ the stub as the legal document. ???

  19. Jo(s)e, I feel like you do about the status. DOL was not impressed. My husband, who is retiring in Jan 2010, asked AFSCME about that status and how it was impacting his accrued leave time etc. They said it WILL (apparently to be trued up after the budget is signed) and they advised him to hang onto each and every pay stub to audit his leave time afterward to make sure it is correct.

    I have some more kvetching and details on my blog…if you click on my name it will take you there.

  20. We have decided at our worksite that the LWOP showing on our pay statements does not stand for Leave Without Pay, but stands for Legislators Withholding Our Paychecks!

    DON’T PASS THE BUCK AND PASS THE BUDGET!

  21. I would think if you work, they would code it WWOP = work without pay Not LWOP = leave without pay.

  22. Two court cases decided by the US Supreme Court prevent private suits in Federal court and in State Courts enforcing FLSA. However, the Secretary of DOL can intercede. You cannot file a claim for the most part until you receive no pay, unless your gross pay for the hours worked is less than the Federal minimum wage. In addition, any management employees should file as well. YOU MAY BE COVERED.

  23. The only joy I get out of any of this is know that even ASSCme will not be getting dues or fair share, the people of this state once brought about a reversal of fortune for all legislators who voted for a midnight pay increase, you would think that close to 80,000 disgruntled employees not getting paid would account for something.

  24. My husband is supposed to get his clothing allowance on tomorrow’s pay. Will this be figured into the minimum wage issue that you are speaking of? I don’t know if this is the time of year the DOC normally get’s the pay.

  25. It is the normal time of year to get the clothing allowance. It always comes in the last July or first August payday.

  26. Another question: When we apply for the food stamps, do we need to add the few dollars our daughter makes as a server as part of our household income? She uses this for gasoline and school expenses.

  27. LT’s Wife,
    I work for DPW. Your question concerning your daughter’s income requires a little more information. You mention school expenses, I would assume from that information that she is a student. Can you answer these questions?

    How old is she?
    Is this high school or is this college?

    HIGH SCHOOL STUDENT REGULATIONS

    If she is under age 18 and attending high school her earned income would be exempt under FS regulations. I would include it on the appl. but it will not be counted as income.
    If she is 18 or older and still attending high school, she is eligible to be included in the household, but her income WOULD count.

    COLLEGE STUDENT REGULATIONS

    If she is a college student, she (and her income) can only be included in the FS household if she meets certain criteria. This is where it gets tricky. There are quite a few ways she can qualify to be included in your FS household as a college student, but if she is included, her income must also count. Some of the more common ways college students qualify to be part of a FS household are: (a) working at least 20 hrs/week with earnings equal to 20 times the minimum wage (b)working in a work study program (c)enrolled in college less than half-time. Here is the link to this particular policy, it might help you to see all the criteria.
    http://www.dpw.state.pa.us/oimpolicymanuals/manuals/bop/fs/514/514-01.htm#P32_529

    If you could answer a few of the above questions, I’d be more than happy to help you sort out the policy.

    FYI, I deal strictly with applications in the intake dept. of my county office and have only handled 5 Commonwealth applications to date. Just want to get the word out to those of you planning on applying. You DO NOT have to wait until August to apply if you think you have more than the income limit in July. The system will open benefits beginning with August 1, but the benefits can be available to the client the day following input by the DPW worker. I have already issued FS to 2 of these Commonwealth employee households who were able to provide the necessary verifications with their applications. Of course, I can only speak for myself & my caseload (which is extremely high anyway due to the economic recession across the state) in saying that authorization timeframes will vary from county office to county office. I would say that in my district office, these applications are getting authorized within 1-3 days after we receive all the verifications. Feel free to ask any questions.

  28. Should have proofread post more carefully….*sigh* A correction to the above post under COLLEGE STUDENT REGULATIONS:

    should read…”(a) working at least 20 hrs/week with weekly earnings equal to 20 HOURS times the minimum wage”

    Sorry, I’m just a Type A personality 🙂

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