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”.