Note: This is part of a series of posts detailing the 2009 Pennsylvania budget impasse. To see all posts in this series, click here.
An anonymous source just forwarded me a very interesting email concerning Pennsylvania’s threat to require its employees to work with delayed pay. While it’s already been fairly well established that federal labor law will apply, our Governor and our legislature seem to think that it does not. I can not fathom why they would put Pennsylvania taxpayers on the hook for hundreds of millions of dollars in civil damages by breaking the law.
At any rate, the US Department of Labor — the federal agency tasked with enforcing the Fair Labor Standards Act — seems to disagree with them. And Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 (1985)), decided almost a quarter century ago, says that government workers are, in fact, protected by the FLSA.
(The precedent used to state that government workers who performed “traditional” duties were not covered. However, Garcia rightfully asserted that defining “traditional” government duties in this day and age becomes far too complex of an issue.)
Here’s an excerpt from the email I received, which comes from the US Department of Labor:
While employers have the right to change the pay period, recordkeeping laws under the Fair Labor Standards Act (FLSA) require employees to be paid on the established payday in relation to a specified workweek used to determine when overtime pay is due. This issue is handled by the Wage and Hour
Employers can change the paydate, and it’s not necessarily a violation for a company to delay your pay when they move your date back one half period. But the law could not possibly be clearer:
If you work, you must be paid, and you must be paid on time.
There’s been talk about whether or not federal law even applies due to interstate commerce concerns. I have to admit I’m staring into a gaping maw when I try to figure that one out. I am not a lawyer, and given my lack of any legal experience or training, I can’t begin to cover all the ins and outs of what constitutes “interstate commerce” or if it’s even relevant in this matter to begin with. But I can tell you that Pennsylvania absolutely, positively engages in interstate transactions with other states, other companies, and other persons. At the risk of sounding naive, how is that not interstate commerce?
There’s one loophole that the state can apply to get out of damages. The FLSA only requires an employer to pay minimum wage. So, Pennsylvania can temporarily drop every state employee’s wage to $7.15 an hour. The discrepancy between this and our agreed-upon pay rate would be a civil matter for the courts to take up. Nonetheless, I think I speak for every Pennsylvania state employee when I say we’d rather get a $536 paycheck (before taxes, pension, benefits, and AFSCME; for myself, I’d take home about $381) every two weeks than no paycheck at all.
No matter what happens, no enforcement action can begin until the first missed payday comes and goes — at the earliest. Until then, no laws have been broken and no damages have occured. And there are still possibilities for a successful budget resolution. We still have two weeks until SAP goes into hibernation. An actual budget could be passed, or a stopgap funding measure could be enacted. AFSCME could … do something. Someone could point out to the legislature that they’ll all have to go home and explain to their constituents why the spending power of 90,000 state employees vanished overnight.