There’s just one problem with that:

WE’RE NOT UNEMPLOYED!

We can not collect unemployment because we are still employed.  I’m not clear on which is worse; being laid off and collecting unemployment, or being forced to work without a paycheck.  Oh sure, we’ll get paid — but it will be somewhere between 1 and 52 weeks late.  I’m sure Honda, Sallie Mae, my mortgage company, and my credit card company will all understand.  And I’m positive Giant will be willing to just let me take whatever food I need and pay for it “later”.

Thanks, guys.  Big help.  Glad to see you’re on this.

In what has become an annual tradition since 2003, Pennsylvania Governor Ed Rendell has announced that, once again, our state government appears unable to pass a budget by the June 30th deadline.  If this budget remains unresolved, state employees will be required to report to work, but will not be paid until a budget is passed.  The silence from AFSCME — the union which all state employees are required to pay into, regardless of membership, and whom is supposed to help out with this sort of thing — is deafening.

If you’re thinking “Hah, I don’t work for the state, so this doesn’t affect me at all”, you’re dead wrong.

It’s been said by some that the Pennsylvania Wage Payment & Collection Act does not apply to government employees.  I vaguely recall seeing something to this effect in the Act, so I’ll give that the benefit of the doubt.  But another law certainly does apply: the Fair Labor Standards Act.  As a federal law, it automatically trumps whatever state law exists.

Governor Rendell says that in a recent decision, the court held that the FLSA does not trump the state constitution.  This is misleading; the actual decision says that the FLSA does not trump that section of the state constitution because there is no conflict between the two.  For a more detailed explanation of the lawsuit, click here.

According to the US Department of Labor, who is generally up on these kinds of things, the FLSA says that wages are due on the regular payday for the period in question.  And there’s plenty of court precedent to back this up:

• The US Supreme Court case Brooklyn Savings Bank v O’Neil (324 US 697 (1945)) stated an employer’s obligation to pay minimum wage on time, to make “prompt payment”, for payment of “overdue wages”, and that delayed payment is actionable.
• United States v Klinghoffer Bros. Realty Corp (285 F.2d 487, 491 (2d Cir. 1960)) states that after paying overdue wages, an employer is still liable for damages prescribed under the FLSA.
• Atlantic Co v Broughton (146 F.2d 480, 482 (5 ^th Cir. 1944)) states that an employer who does not pay minimum wage plus overtime on “any regular pay date” is immediately liable for the wages in question plus an equal amount in liquidated damages.
• Rogers v City of Troy (949 F. Supp. 118, 123 (N.D.N.Y. 1996)) states that failure to pay at least minimum wage on the regular payday permits a claim under the FLSA.

You get the point.  And that’s not even the tip of the iceberg.  The court cases go on and on, to say nothing of the administrative opinions.  Federal law can not possibly be any clearer:  If you work, you must be paid, and you must be paid on time.  There are no exceptions. For the state to require us to work while delaying our paychecks is illegal.

Even if you’re not a state employee, you should pay close attention to this case.  The FLSA provides for massive liquidated damages — up to $10,000 per violation, in addition to wages due — for violations.  Imagine the cost to taxpayers if 90,000 Civil Service employees filed suit against the State Civil Service Commission for $10,000 a piece.  That’s almost one billion dollars in fines and court costs, to say nothing of the black eye this would give Pennsylvania.  And that’s assuming that we only miss one pay period.  What if we miss a whole month?  What if we miss five?

Pennsylvania taxpayers are going to have to pick up the tab for our governor’s and legislators’ utter failure at doing their jobs.  I don’t accept the legislators’ claim that “it’s the governor’s fault” any more than I accept Rendell’s claim that “it’s the legislators’ fault”.  If either side had a comprehensive budget that actually worked, I can certainly guarantee that it would be plastered up everywhere.  Publishing a workable budget would be a nuclear option against a stalling governor (or legislature), yet despite assurances from all sides that “ours works”, nobody has put forth anything.  So far, the website for the General Assembly is silent on the matter, as is the governor’s.

Anyone who pays taxes in Pennsylvania — regardless of who they’re employed by — needs to contact their senator, their representative, and their governor immediately.  Demand that they put forth a viable budget.  If they say “we already have”, ask them for a copy.  And ask them why they can’t work with “the other side” to figure things out.

Ed Rendell is already on his way out the door.  Maybe it’s time to flush the legislature again.

EDIT: Oops, AFSCME is not the only state employee’s union.  But it’s the largest.  And their official stance is ” … “.  Thanks, guys.  Glad to see my $40 / month “contribution” is doing anything.

EDIT 2: There’s been talk about whether or not state employees are covered under the FLSA.  They are, period.  See Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 (1985)).  I am not a lawyer, but the pile of evidence that Pennsylvania is about to commit a major violation of federal law is quickly growing from “noteworthy” to “staggering”.

There’s an interesting law on the books — one that I’m very familiar with, having used it against a former employer — called the Pennsylvania Wage Payment And Collection Act of 1961.  It’s a very simple law to read, and I suggest everyone (state employee or not) take a look at it.  In short, it states that your employer must pay you on your regular payday, that your employer can not delay payment under any circumstances, and that your employer can not waive your rights by making you sign an agreement.  In other words, if you work, you must get paid.  Period.  The act even goes on to clarify that this explicitly applies to salary, hourly rate, commission, and so on.  It’s a pretty open-and-shut law:  If you work, you must get paid on time.

Read on for some highlights, but my question is this:

Us commonwealth employees are technically employed through the State Civil Service Commission.  Your agency is only a designation; you are technically employed by Pennsylvania.  If the SCSC fails to pay our wages on time, are they on the hook for the criminal and civil penalties prescribed under the Act?

Some excerpts from the law (highlighting is mine):

Every employer shall pay all wages, other than fringe benefits and wage supplements, due to his employes on regular paydays designated in advance by the employer.

No provision of this act shall in any way be contravened or set aside by a private agreement.

Every employer shall keep open to inspection by the secretary or his authorized representative, all payroll records or other records or documents relative to the enforcement of this act. Such inspection may be made by the secretary or his authorized representative at any reasonable time.

Where wages remain unpaid for thirty days beyond the regularly scheduled payday … and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment, the employe shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater.

In addition to any other penalty or punishment otherwise prescribed by law, any employer who violates any provisions of this act shall be guilty of a summary offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars ($300), or by imprisonment up to 90 days, or by both, for each offense. The good faith contest or dispute by any employer of any wage claim or the good faith assertion of a right of set-off or counter-claim shall not be considered a violation of this act: Provided, That the employer has paid all wages due in excess of the amount in dispute or asserted to be subject to a
right of set-off or counter-claim. Nonpayment of wages to, on account of, or for the benefit of each individual employe shall constitute a separate offense.

I am not a lawyer, but I was able to bring a successful claim against a former employer over a $160 underpayment (which, in turn, wound up costing that employer somewhere in the neighborhood of $800, plus a trip from Philadelphia to Harrisburg) under this act.  There is a definite possibility that legislation will be (or has been) passed exempting the SCSC from this Act, or providing a special exclusion for budget failures.

Because, as we all know, passing the budget on time is simply not an option.