Media Coverage of PA’s Budget Impasse

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

Dear The Media,

Where are you?

I know that a lot of you have already run stories on Pennsylvania’s 2009 budget impasse, and that’s good.  Thanks.  This is a matter of public interest that affects every Pennsylvania taxpayer, and quite possibly 49 other states full of taxpayers as well, so we need to make sure the Spotlight of Competent Journalism is shining brightly on our legislature and governor.

But what I don’t understand is why none of you are investigating the Rendell administration’s claims that the Fair Labor Standards Act has been “overruled” by the Pennsylvania Constitution.  You see, the Court did not say what Rendell’s administration says the court said.  The Court, in very plain English, said that there was no conflict between the Pennsylvania Constitution and the FLSA:

“This Court concludes that there exists no conflict between the FLSA and Article III, Section 24; the two provisions address different concerns.”

Based on this, the Court correctly answered the question “Does the Fair Labor Standards Act overrule article III, section 24 of the Pennsylvania Constitution?” with a resounding “no”.  Had the question been “Does article III, section 24 of the  Pennsylvania Constitution overrule the FLSA?”, the answer would also have been “no”.  Had the question been “Does Pennsylvania’s 65-MPH speed limit overrule my township’s zoning laws?”, the answer would, again, be “no”.

The problem is what the Rendell administration inferred from the Court’s decision.  Rendell incorrectly assumed that if the FLSA does not overrule the PA Constitution, then the PA Constitution must overrule the FLSA.  But the reality is that neither overrules the other because they do not conflict.

Granted, the Patriot-News ran one story questioning the governor’s suggestion that the FLSA does not apply to state employees.  But that story was a little weak.  You asked the governor’s spokesman what he thinks, and asked the AFSCME head what he thinks, and left it at that.  I do enjoy the Patriot-News and I think you’re a great newspaper overall (PennLive, on the other hand…), but I have to ask — was that story just an editorial piece?  I realize that it would have been inappropriate for the reporter to accuse either party of misspeaking, but don’t you have a legal research department?  Couldn’t someone look up the Court’s decision on the matter?  Being that the decision was written in plain English, anyone can read and understand the Court’s very clear stance.

And where are the rest of you?  The governor and legislature have splintered into several warring factions over the budget.  Now is not the time to start taking everyone at their word.

Chuck Ardo, Governor Rendell’s spokesman, is now beginning to admit that a delayed paycheck may violate the Fair Labor Standards Act and may put Pennsylvania taxpayers on the hook for damages.  It appears that something has happened to cause the administration to change its tune.  If this abrupt reversal does not raise red flags at every media outlet across the state, I can’t imagine what would.

Perhaps if Michael Jackson was somehow involved.

As both a state employee and a taxpayer, I implore you to research this point further.  Surely you have a legal research staff that can dig into this matter.  If not, a cursory review of federal cases pertaining to the FLSA reveals employers in worse shape than Pennsylvania being found guilty of violations, and a well-maintained court belief that a lack of money is not a defense for violation of the FLSA.

Please do not give the governor, AFSCME, or the legislature a free pass on this issue.  Pennsylvania taxpayers are days away from being liable for tens (quite possibly hundreds) of millions of dollars in damages, in addition to back pay, for our government’s failure to follow the law.

I don’t normally ask for much, but I imagine at least one reporter at one outlet is going to eventually break this story.  Will it to be you, or your competitor?

Sincerely

Me

40 thoughts on “Media Coverage of PA’s Budget Impasse”

  1. I contacted my attorney today. We meet July 27th. He said that the state would be in violation of it’s own laws, as well as federal laws.

  2. Sandman, My husband is a state employee and we weren’t sure how to proceed if “Payless Paydays” are imposed. Are unions (i.e. PSCOA) seeking damages for employees, or are we on our own? When can you file for damages?

  3. Because of the 10th Amendment to the US Constitution, any private lawsuit against the state would likely be unsuccessful. Thus, it is imperative that every affected employee contact the US Department of Labor (NOT the Pennsylvania Department of Labor & Industry) as soon as their paycheck is shorted — and not before. I will post the details on this again once this coming payday hits.

  4. Thanks floor9. So it won’t do me any good to go to a lawyer? I contacted my family lawyer, he seemed really happy to discuss this with me.

  5. I had my lawyer look extensively into it. His conclusion was the same as Robin and Floor9. The only way we, as individuals, can sue the state for a violation of FLSA is if the State AGREES to be sued.

  6. By all means, talk to a lawyer (for free). However, it is my understanding that a private suit would be unsuccessful. Also, based on my past interactions with them, I would not feel comfortable asking the Pennsylvania Department of Labor & Industry to handle this one. I think this is best left to the US DOL. I’ll post more updates once the empty paychecks start coming.

  7. I will cancel my meeting. Should we start looking for jobs in the private sector? I was offered a lucrative job at a hospital doing IT. I am sick of the crap here.

  8. Wow! I just went by the 3rd Street Capitol steps and they are jam packed. I saw several news vans there. When I was a block or two away I could hear them chanting. Sounded like a concert hall. Wow!

  9. The commotion was the union approved employee rally, 14 counties participated today at noon. I posted a video of ours on youtube, I also emailed it to a couple news outlets. Who knows maybe it will help us.

  10. I went into ESS to check my expected pay for next week. They have it marked as 60 hrs budget related LWOP (leave without pay) I want to know is how they can mark it leave without pay when I am required to be there so I can eventually get paid. Will this not mess up a few things?

  11. You would need to appeal to the NLRB. It would be pretty difficult to prove John. They would tell you first to try the local, then the international, then the NLRB. And you can’t really sue them anyway…the NLRB can simply sanction them. Sue? I reckon anything’s possible…but I think you are likely not to get anywhere in this situation.

  12. Will calling and filing a complaint through DOL forfeit my right to liquidated damages? or is that the entire reason for my complaint? can someone enlighten me? I would like to push for that double pay in damages.

  13. Hello love comming here and reading .I also work for penndot and the union is in this with fast eddy they want higher taxes for more money .And i will be calling pennsylvania labor and indusrty on the seventeenth

  14. The number you need to call is not a state number it is actually a federal office.. The Division of Wage & Hour. They have 3 offices in PA. I actually called Washington DC to the Department of Labor and Industry and they instructed on what the step should be when the pay is shorted. The federal offices are in Pittsburg, Philadelphia and Wilkes-Barre. If you are in the Harrisburg area you will call the Wilkes-Barre office (570) 826-6316.

  15. Calling will not forfeit your rights to damages, however you cannot push for that as a private citizen or employee. You can simply call and complain to the Wage and Hour office as per JJ’s post and several other posts on the budget here at floor9…when you do, report that your pay is missing, short, late. You have not been paid at all for the 3 days in July, let alone minimum wage. ASK for the intervention of the Secretary of Labor on your behalf. The more state employees that do this, the stronger the case for intervention will be.

    The next steps they take from DOL are unclear to me. I suspect that there will be discussions between the Secretary of Labor and Harrisburg trying to negotiate an agreement to pay. If not, she (the Secretary) and only she I believe, can choose to sue in Federal Court for double the amount in damages…triple if it is viewed as a willful violation of FLSA. (Given that Ed and the legislature were forewarned of the recourse open to employees under FLSA in their readout from the AFSCME case last year, I am planning to assert in our complaint that Harrisburg is willfully and with full knowledge of FLSA withholding wages and holding employees hostage in a political game. Ed is a lawyer and married to a Federal judge. He full well knows the FLSA drill and is choosing to misinterpret who has the right to say PA must pay or not pay if you ask me. He’s such a PUTZ!

    Anyway, I digress. I do not think the Federal Court can order the State to pay if they are not going to…but they CAN order damages. Now…how do they get them to pay them? A private business I suppose they could impact negatively for non-compliance. How do they negatively impact a State employer? Bottom line though, if Ed had any federal political aspirations I doubt that this will bode well for him in Obama’s administration and the party overall given current economic times. I say it again. He is such a PUTZ!

  16. Timc DON’T waste your time with Pennsylvania DOL. Call the Federal DOL at the number posted by JJ above. The state is not going to do one single little thing for you. They’re going to parrot the party line with regard to the budget.

  17. I contacted the fed DOL and was referred to the local office of the division of wage and hours. It is section 6 of the flsa that the state would be in violation of by not paying us. They are required to pay us the federal min wage X hours worked. Currently it’s $6.55 so as long as the 7/17 pay is at least $458.50, they haven’t viloated any laws. But they will be in viloation if our pay on 7/31 isn’t at least $458.50. So contact the feds at that time. Also, the fed minimum wage will increase to $7.25 eff 7/24.

  18. This was posted at my job today:

    SEIU 668 PSSU

    Governor Rendell
    Guess Who’s Coming to Dinner?
    WE ARE!!!

    WHERE: Friday, July 17, 2009 @ 5:30
    Where: Governor Rendell’s House
    3425 Warden Drive
    Philadelphia, Pa. 19129
    WHY: The Governor and elected state officials have abandoned state workers.
    • State workers are only getting a pay on Friday for 70% of their normal check
    • We also have families, mortgages and bills we are obligated to pay
    • They say it may be September before a budget is passed
    • Rendell claims most state workers should be able to get interest free loansand “they should put a statue of me upon their mantel place.” How arrogant!!

    Show the governor this is totally unacceptable!! Come and bring your family and friends. We’re all in this together.

  19. http://www.dol.gov/esa/whd/america2.htm#Pennsylvania

    Go to that link. It is the contact information for the Department of Labor. Call them on Friday when your paycheck is short. I don’t care if they passed the budget Thursday. When your paycheck is short, give them a call. Hopefully enough of us will call, that it will do something. Hopefully.

  20. another commonwealth worker: I hear what you are saying and pondered over that today myself as I was reading the Act itself. However, in their own materials DOL says that THEIR minimum wage is X but that if a State minimum is higher employees have a right to expect that. So there is inconsistency in their printed materials and what you were told. Then, there is the fact that I’m told the workers records are marked LWOP…leave without pay…though you are not on leave. If that is in print that we can print it down we have documentation that says we are not being paid for hours worked. Additionally…IF the paycheck stub shows hours worked…and it is less than 75 for the two weeks, they are falsifying records.

    SO. Bottom line. I haven’t given up hope that we can file this week. I want to see the documentation (pay stub, system info) first…and still I will try on the basis that three days were unpaid.

    Finally, the job classifications carry with them an hourly rate. It’s in the bargaining unit agreements. If the hourly rate is not met for the classification and seniority, we will be contacting the union to file a grievance and ask why they are not pursuing a bargaining unit violation through the proper channels up to the NLRB if necessary.

    While it might take forever to play out, I think it’s important that this adminisitration understand that there are checks and balances in place that prevent them from abusing their employees this way.

    Rendell is SUCH a putz!

  21. I don’t know what system you use, Robin, but in the SAP System, your new pay stub is generally available on the tuesday after your last paycheck. Mine does indeed say “budget related LWOP” (I assume LWOP stands for Leave Without Pay). I have already printed out this copy of my pay statement, and am awaiting TOMORROW when they will have not paid me fully. Call the DOL. Get yourself heard. This is freaking ILLEGAL! DO NOT LET THE GOVERNMENT GET AWAY WITH NOT PAYING US.

  22. Yet Another…my husband is the State Employee…and he works in the field. So he is often not in an office where he can access the payroll system. I keep telling him if he is doing it from the office, he can do it from home. He is not aware of how. Can you point me to a link where I can get it online?

  23. He should be able to access his ESS needs from home or in the field at http://www.myworkplace.state.pa.us.

    They do include a note on the site as follows:

    To access ESS from HOME, the only IES certified browser is Internet Explorer 6.0 on a Windows XP operating system. All other combinations of browsers (ex: Firefox, Netscape) and PC operating system software (ex: Windows 98, NT, or Vista, MAC, Linux) are NOT certified by IES for ESS access. We also recommend using Adobe Acrobat Reader 7.0. Other products may work; however, full functionality cannot be assured.

  24. Current AFSCME Pa. contract states:

    Article 19, Section 12. The salaries of employees shall be paid biweekly. In the event the payday occurs on a holiday, the preceding day shall be the payday.

    Seems to me that the state will likely break that contract at midnight on Friday. I shouldn’t think the courts will rule that you can’t sue the state for breaching a contract it freely entered into. The question is one of damages, and, I suppose, possibly whether unionized state workers can strike.

  25. I frequently use the ESS system on firefox, and it usually works for most things, but recently the reimbursement system does not. IE 7 works flawlessly, though.

    He can also access his email online, at:

    https://webmail.state.pa.us

    This can be accessed through any computer.

  26. Robin, I also use firefox and have no trouble. When accessing my work place from home though you need to put cwopa before the user name.

  27. Dept of Labor responded today to several inquaries regarding filing a wage complaint. Employees must at least be paid min. wage for each hr. worked, as soon as that ends official complaints can be made to the Department of Labor.

  28. I want to know is that if the state is in such a defict that they can’t pass a budget without a 16% raise in taxes then how can the state afford to pay 1 million dollars for a legistative conference that supposedly no one from pa will be attending. Another wasteful spending by our govt. They would have plenty of money if they would quit wasting it on stupid stuff and only spend what is necessary like the rest of us

  29. Well on friday 07/24 the Dept. of Corrections staff gets paid and my paycheck is for approx. $200.00, my gross is approx. $320.00 divide that by 80 hours certainly does not equal the federal min. wage rate of $6.55. I will be calling the Fed DOL!!!!I am outraged that we go to work everyday and aren’t getting paid on time!!!!My creditors don’t care that I’m not getting paid. I work everyday I shouldn’t have to count on loans, friends, family or goverment programs to help me. When I am able bodied and working everyday.

  30. First thing first, I watched c-span the entire day to follow the transportation budget to be passed. Watching The House and the Reps. was horrifying. If the average american worker, accomplished as little as they did today, they would be fired from that position.
    Second, The Great State of PA takes $52.00 every beginning of the year for the privilge of working in the State of PA, that in itself is outrages. Then to have to work risking their lives for the PA roads & bridges and not being paid for that, yet our Federal employees of the Social Security can take expensive retreats to Arizona on our dime, because they are stressed. No one needs to tell us about stress, after having Ed Rendell as a governor.

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