In Pennsylvania, the PMWA requires employers to pay employees 1.5 times their ordinary wage for hours worked in excess of 40 hours in a workweek (this "time and a half" concept is similar to the federal FLSA overtime requirements, which I will return to later). The PMWA contains an exemption, however, for "[d]omestic services in or about the private home of the employer." 43 P.S. § 333.105(a)(2).
The Pennsylvania Department of Labor and Industry promulgated a regulation defining the exemption as
Work in or about a private dwelling for an employer in his capacity as a householder, as distinguished from work in or about a private dwelling for such employer in the employer's pursuit of a trade, occupation, profession, enterprise or vocation.34 Pa.Code § 231.1(b). Which, as the Court explained, means that:
[W]orking for the householder employer permits an exemption from overtime requirements. Working for a third-party agency employer does not.Thus, the Court concludes that "an employer may enjoy the domestic services exemption [of the PMWA] only if it is a householder" and third-party agency employers do not qualify.
This case creates an interesting situation for Pennsylvania employers. The United States Supreme Court recently held that home elder care providers employed by an agency were not entitled to overtime under the FLSA. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). Indeed, the PA Supreme Court itself recognized that "the federal regulations under the FLSA exempt third-party agency employers from paying overtime." 29 C.F.R. § 552.109(a). The employees qualified for the "companionship services" exemption of the FLSA.
So, in Pennsylvania, employees of home care agencies may be exempt from FLSA overtime provisions but not exempt from the PMWA overtime provisions. The ultimate practical effect being that they are entitled to overtime.
Agency home care aides must be paid overtime in Pennsylvania.
PA Supreme Court: In-Home Nurses Entitled To Overtime Pay
Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.