Thursday, December 30, 2010

CASE OF THE YEAR!

Welcome to the first annual Lawffice Space employment law CASE OF THE YEAR (the caps let you know it's important). It's actually a two-for-one as I roll out two cases of the year. First, the Case of the Week that generated the most hits this year. Second, the case that I subjectively dub the most important of 2010.

Hooters Weight Discrimination
The first CASE OF THE YEAR is (drum roll)... Case of the Week # 5 - Smith v. Hooters. A Hooters waitress filed a lawsuit alleging that she was discriminated against on the basis of weight. That's not a typical claim as weight is generally not a protected class. It is in Michigan though!

I guess people love to read up on new legal theories and case law in the developing field of weight discrimination. Of course, all of the attention could have something to do with Hooters being one of the parties.... naaaah.

Be sure to check out the full archives of all Cases of the Week (includes this post) and look for new ones every Friday in 2011!

Lewis v. City of Chicago
And my subjective employment law Case of the Year is Lewis v. City of Chicago. I've spilled enough ink (pixels?) on this Supreme Court case (opinion here) that I'll direct you mostly to my previous posts on the subject (see below). But I do want to explain my rationale.

First, Lewis was a rare unanimous decision for the Court as Title VII cases are often sharply divided. Second, it set a clear rule: The statute of limitations for a disparate impact claim begins upon the application of the employer's practice, not the implementation.

What more could you ask for than a nationally binding precedent from a unanimous court with a clear rule of law? Sure, it didn't have the media hype of 2009's Ricci v. DeStefano (See my summaries of those opinions); nor did it generate the controversy of Gross v. FBL (summary here). Sometimes it's just nice to have a solid ruling on which to rely.

For more Lawffice Space coverage of Lewis v. City of Chicago see:
I was also quoted in two Business Insurance articles:
What do you think? Got a better Case of the Year? Drop a comment!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, December 29, 2010

Top 10 Lawffice Space Entries of 2010: Nos. 5-1

The countdown continues today with the Top 5 posts of 2010. Believe it or not, this is post #300! I guess time flies when you're having fun. Also, be sure to check out the Top 10 of 2009 and Nos. 6-10 of 2010. Now, the Top 5...

5. Vague Affirmative Defenses and Motions to Strike Them
I'm extraordinarily happy to see this one on the list. It's a post announcing my cover article in the PBA Civil Litigation Update. I had fun researching and writing the article, and I think lawyers will find it helpful in analyzing motions to strike vague affirmative defenses.

4. Service Dog v. Allergies - ADA Accommodation Conflict
Some of my thoughts on handling a conflict between an employee who needs a service dog and another employee who is allergic to that dog.

3. Waitress Fired for Facebook Status Update
Social media topics are hot right now, and this post has proven to be one of my most popular. It has been Retweeted 18 times and Liked on Facebook 12 times. Moral of the story? Don't call your customers "pieces of *&%$."

2. The 6 Requirements for an Unpaid Internship
Many unpaid internships violate the Fair Labor Standards Act. When the Department of Labor signalled a crackdown this suddenly became a hot topic. This post lists the requirements for FLSA compliance and was boosted by one of the search tool sites (Can't remember... Digg, StumbleUpon, or Reddit I think).

1. Email Harassment - Jesse James Edition
My most popular post of 2010, beating out everything that was published in 2009 as well. It has Sandra Bullock, Jesse James, a lurid affair, allegations of Nazism, and a tattooed bikini model named "Bombshell." When that train wreck took a turn for employment law with an email harassment claim, I had a hit post on my hands.

Thank you to everyone who read Lawffice Space in 2010. Tune in tomorrow for the Case of the Year!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, December 28, 2010

Top 10 Lawffice Space Entries of 2010: Nos. 10-6

It seems like only yesterday that I was drafting the Top 10 Lawffice Space Entries of 2009. Where did 2010 go? Here are some of the top posts of the year to help us remember. Posts are ranked by number of pageviews in 2010 and only posts written in 2010 are eligible.

10. Chart of Union Membership by Sector
I've noticed that people like charts. This post shows the decline of union membership in the private sector, the gain in union membership in the public sector, and the overall decline in union membership in the last decade.

9. Chart of EEOC Charges 1997-2009
Like I just said... people like charts! This post breaks down the number of discrimination charges filed with the EEOC, broken down by protected class. I expect the EEOC to release its 2010 statistics shortly and you can expect an updated chart.

8. Prima Facie ADEA Case in RIF Post-Gross
This post addressed a technical legal issue arising from the Supreme Court's decision in Gross v. FBL. It includes the 6th Circuit's framework and a link to several briefs on the issue drafted by students as part of a moot court competition.

7. Employee's Fetus was Creating a Negative Energy Field in the Workplace
A bizarre discrimination suit involving a fetus accused of having a negative force field. This post was retweeted 16 times and liked on Facebook 12 times in 2010. There's a disturbing "pre-birth memory" story in there too (don't say I didn't warn you).

6. Distraction Theory - ADA Association Provision
This entry addressed a legal theory protecting employees who are "distracted" from their work duties due to an association with an individual with a disability. This is the newest post in the Top 10 (there's some date bias in the list as January posts, for example, have 12 months to accumulate hits). The instant popularity of this post was largely due to a link from Overlawyered, the oldest law blog known to man.

Tune in tomorrow for the top 5!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, December 27, 2010

"84% of employees plan to look for a new position in 2011"

A recent CNN.com article, New Year's Resolution: I Quit!, reports interesting new survey results:
According to a recent survey by job-placement firm Manpower, 84% of employees plan to look for a new position in 2011. That's up from just 60% last year.
The bad news for employers is that about 5 in 6 employees want to leave. The good news for employers is that there should be plenty of applicants for any openings.

Of course, the bad news for everyone is that this is all against a backdrop of high unemployment. Furthermore, it signals that employees are currently dissatisfied which is bad for employers and employees alike.

HT: HR Hero via Twitter

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, December 22, 2010

Is a Christmas Federal Holiday Constitutional? - COTW #21

The federal government officially recognizes December 25, along with nine other days, as a holiday. Federal statute provides: "The following are legal public holidays . . . Christmas Day, December 25." 5 U.S.C.A. § 6103. Is the government's recognition of a religious holiday, namely Christmas, Constitutional?

According to Ganulin v. U.S., 71 F. Supp. 2d 824 (S.D. Ohio 1999)(affirmed by the 6th Circuit) it is Constitutional. And, since we're closing in on Christmas, Ganulin is the perfect Case of the Week. I provided a brief summary of the case in last year's entry: Christmas and the Constitution. Recently, a reader offered some colorful commentary (see comments on the linked post) to which I will respond in this post.

He asserts: "Yet the fed govt named it 'christ'mas day. So, maybe the problem is . . . that they used one particular culture's cult figurehead to name it after!"

The Government Didn't "Name it" Christmas
Yes, I see the point that the statute includes the word "Christmas" and that the word has a clear religious connotation (aka "Christ"). But, as the Christmas Wikipedia entry notes, the date of December 25 may have been selected as early as the 4th Century (more than a millennium before the U.S. government existed)! And it was certainly called "Christmas" before the federal statute.

If the government were to take a random day and call it "Christ Day" then this argument would be more compelling. But the date and name simply didn't originate with the government. Admittedly, the statute does still acknowledge "Christmas" but that is in line with the Court's rationale, which I explain below.

"The Calendar of Public Activities"
If you read the Court's opinion it offers secular purposes for the holiday such as "accommodat[ing] the calendar of public activities" and "recognizing the cultural significance of the holiday." In short, the "public calendar" had a holiday before the government passed the statute, and that holiday was "Christmas."

As the Court notes, the days of the week are named for religious reasons. For example, "Thursday" comes from the Norse god Thor. I certainly don't take the statute's recognition of Thanksgiving as "the fourth Thursday in November" as an establishment of Norse polytheism. It just recognizes that the public calendar marks it as such.

There is No Mandate
Ultimately, the Christmas holiday doesn't require any religious activity or acceptance of any religion. At one point, the commenter asserts "I'm not trying to take away christmas [but] it shouldn't be rammed down our collective throats by federal mandate." But, the federal government doesn't "mandate" that you do anything. Literally, nothing. It's one of ten weekdays throughout the year on which federal employees generally don't have to come into work. The "Christmas" holiday doesn't require you to practice Christianity any more than Labor Day forces you to join a union.

Conclusion
While I certainly understand the concern over government mandates regarding religious holidays, I'm just not convinced that Ganulin got it wrong. I'm open-minded though, so if you have counter-arguments to the Court's position, please drop a comment.

Update (12/22/2010): Jewish author Jamie Katz has an interesting article along the lines of the "public calendar" theory in the Chicago Tribune: Yes, Virginia -  You Can Say 'Merry Christmas'

Image: Christmas tree at Rockefeller Plaza, New York, 2006. Author: Alsandro - Under Creative Commons Attribution ShareAlike 3.0 license.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, December 21, 2010

Great Gift Idea for the HR Professional Who has Everything

The holidays are upon us, and you may be wondering: "What gift can I get for the HR professional who has everything?" Well, have I got an idea for you! Why not get him or her a shiny new "Know Your Rights" National Labor Relations Act poster?

The National Labor Relations Board issued a press release explaining that:
The National Labor Relations Board has submitted to the Federal Register a Notice of Proposed Rulemaking, which provides for a 60-day comment period. The rule would require employers to notify employees of their rights under the National Labor Relations Act . . . . Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted.
(Click here for full press release). As the Release notes, there are already required posters for the FLSA, Title VII, ADEA, OSHA, ADA, FMLA, and "other workplace laws"... not to mention state law posting requirements. Better make some more room on that wall!

If you're an employer and you don't do this already, it might be time to start looking into compliance via electronic posting.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, December 20, 2010

Lawffice Space Named Top 100 Employment Law Blog... Again!

For the second consecutive year, the Delaware Employment Law Blog named Lawffice Space one of the Top 100 Employment Law Blogs! I am truly honored to have made the cut. A special thanks to Molly DiBianca who compiled the list.

I encourage everyone to visit the Top 100 to discover some other great employment law resources. I will continue to do my best to ensure that Lawffice Space is worthy of its spot on the list.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, December 17, 2010

Bankruptcy Discrimination in Hiring - COTW #20

Can private employers consider an applicant's past bankruptcy in hiring decisions? On Wednesday, the Third Circuit held in Rea v. Federated Investors that they could. This is in line with a majority of other courts that have considered the issue.

In Rea, the applicant had declared bankruptcy in 2002 and then applied for a job through a placement firm with the employer in 2009. The placement firm then informed him that the employer refused to hire him because of his past bankruptcy.

Section 525 of the bankruptcy code prohibits discrimination against an individual solely because he or she has been bankrupt. BUT, it requires a very careful reading. Subsection (a) provides that a "governmental unit may not . . . deny employment to,terminate the employment of, or discriminate with respect to employment against a person" that has been bankrupt. But that's "governmental units."

What about private employers? They're covered under subsection (b) which provides that "[n]o private employer may terminate the employment of, or discriminate with respect to employment against" a person that has been bankrupt. Do you see what's missing (see underlining above for a clue)? Subsection (b) doesn't include "deny employment to."

The Third Circuit turned to past Supreme Court canons of interpretation to resolve the issue:
As the Supreme Court stated in Russello v. United States, 464 U.S. 16, 23 (1983), "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion."
Therefore, the exclusion of "deny employment to" was intentional and it has a meaning... the meaning being that private employers are not prohibited from considering past bankruptcy in hiring decisions.

The Third Circuit affirmed the lower court's decision to dismiss the case.

Special Announcement: Lawffice Space is now specially formatted for mobile phones! I tested it out on my iPhone and it is much better than it was before the upgrade. Drop a comment to let me know what you think.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, December 15, 2010

Scranton Courthouses Added to Pennsylvania Courthouses Photo Album

Lackawanna County and Middle District of Pennsylvania
I had a worker's comp hearing in Scranton a couple weeks ago, and guess what? I grabbed some pictures for the Pennsylvania Courthouses Photo Album. In a Lawffice Space first, I got a two-for-one... the Lackawanna County Courthouse and the Middle District of Pennsylvania federal courthouse in the same shot!

Both buildings are huge. The Lackawanna County Courthouse looks like a castle, although one side has some modern flair with a glass enclosure. The County Courthouse sits alone on a full block with some nice green space and plenty of statues to go around. One such statue is of John Mitchell - "Champion of Labor".

You may have two questions about the Middle District Courthouse:

1. Didn't you tell us it was in Williamsport?
Yes. The Middle District actually has four different courthouses.

2. If Scranton (allll the way over by Pennsylvania's eastern border) is the "Middle" District... where the heck is the Eastern District?
The Eastern District encompasses only the southeast corner of Pennsylvania. An interesting tidbit: the Middle District Courthouse in Scranton is actually east of the Eastern District Courthouse in Reading.

Two more impressive Pennsylvania Courthouses in the books.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Whistleblower-Palooza

It seems like whistleblower protection is a hot topic lately (well, along with that whole part of the health care law is unconstitutional thing). There are two topics of note in the whistleblower arena.

First, the Senate passed the Whistleblower Protection Enhancement Act. The Washington Post had some coverage, noting that:
The Senate has passed enhanced protections for government employees and contractors who report cases of waste, fraud and abuse.
Perhaps the most shocking part of the article is the statistic that the existing Whistleblower Protection Act has led to a "3-210 record against whistleblowers for decisions on the merits since October 1994." (Hat Tip: HR Hero via Twitter).

Additionally, the Wall Street Journal covered the challenges in ramping up the new Dodd-Frank whitleblower protections program:
The Dodd-Frank law dangles a pile of money in front of whistleblowers who tip off the Securities and Exchange Commission and Commodity Futures Trading Commission to financial fraud. But collecting the bounty could be a challenge.
The article draws comparisons to the delays in the IRS's implementation of its own compensation for information program. (Hat Tip: Paul Secunda via Twitter).

Whistleblowing appears to be getting more protection every day, so it would be wise to keep up with the latest developments.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, December 10, 2010

Waterboarding, Fake Mustaches, and Other Workplace Motivational Exercises - COTW #19

This week's employment law Case of the Week is Hudgens v. Prosper, Inc. from the Utah Supreme Court. The case involves a supervisor named Josh Christopherson who was accused of engaging in, what the Court calls, "numerous questionable management practices."

Like what, you ask? Well, as the Court describes:
[W]hen an employee did not meet performance goals, Mr. Christopherson would draw a mustache on the employee using permanent marker or he would remove the employee’s chair. Additionally, he would patrol the employees’ work area with a wooden paddle, which he would use to strike desks and tabletops.
I can't help but think that this guy would thrive in a workplace environment run by Tiger Mike (a hall of famer in the world of "questionable management").

These bizarre practices took a turn for the downright scary though, when Mr. Christopherson asked for a volunteer to test his "new motivational exercise." Note to employees: when a guy who carries a paddle for fun asks for volunteers for a mystery exercise... DO NOT VOLUNTEER! Unfortunately for the Plaintiff, Mr. Hudgens, he didn't have this foresight:
Mr. Christopherson then led his team members to the top of a hill near Prosper’s office. Once on the hill, Mr. Christopherson ordered Mr. Hudgens to lie down, facing up, with his head pointed downhill. Mr. Christopherson ordered other team members to hold Mr. Hudgens down by his arms and legs. Mr. Christopherson then slowly poured water from a gallon jug over Mr. Hudgens’s mouth and nose so that he could not breathe. Mr. Hudgens struggled and tried to escape but, at Mr. Christopherson’s direction, the other team members held him down.
As the Court correctly labels this later in the opinion: waterboarding.

Amazingly, this case was on appeal because all of the Plaintiff's claims had been dismissed with prejudice (which means he would be precluded from amending his Complaint to bring the same claims in the future). The Utah Supreme Court didn't really address the merits (of what seem to at least be pretty clear assault, battery, and IIED claims). The Court did, however, remand to the lower court for reconsideration of the Plaintiff's request to amend his complaint.

Hat Tip: Mason Law classmate and fellow employment lawyer Derek Bottcher of Paul Hastings for passing along this Workplace Prof Blog entry on the case.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, December 8, 2010

Discovery Granted: Give Opposing Counsel Your Facebook Password

In the Pennsylvania case, McMillen v. Hummingbird Speedway, Inc., the Jefferson County Court ordered the plaintiff to disclose his Facebook and MySpace passwords. Defendant requested the usernames and passwords for the social media sites in discovery. Plaintiff responded by claiming that such information was "confidential."

In Pennsylvania, we don't have e-discovery rules... we have discovery rules applied to electronically stored information. Generally, relevant information is discoverable unless it is privileged. The Court noted that the plaintiff could not identify any authority for the existence of a "social network site privilege." The Court did provide some helpful analysis examining whether to create such a privilege.

The Court placed particular emphasis on Facebook's privacy policy, including a clause that warns users that their friends may copy or store information thereby making the information subject to the friend's privacy settings. Additionally, the policy warns that Facebook itself may disclose information in some situations, including court orders and civil litigation requests.  Thus,
Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion.
Accordingly, the Court declined to create the "social network site privilege."

The Court then ordered the following:
[T]he plaintiff shall provide his Facebook and MySpace user names and passwords to counsel for Defendants [and] plaintiff shall not take steps to delete or alter existing information and posts on his MySpace or Facebook account.
This case provides further support for broad discovery of social media accounts (but see the Facebook Fishing Expedition case for a counter-example).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor & employment law practice groups.

Tuesday, December 7, 2010

SCOTUS Hears Association Retaliation Case - Who Gets Scalia's "Kid Gloves?"

The Supreme Court heard oral arguments today (transcript here) in Thompson v. North American Stainless LP. Loyal readers with long memories may recall that I covered the Sixth Circuit's decision in this case in my post Fire the Fiancé.

Justice Antonin Scalia
If an employee files a discrimination charge, and the employer retaliates by firing her fiancé (who happens to work for the same employer), can the employer be liable under Title VII? Can the complaining employee file suit? Can the fiancé, the one who was actually terminated, sue? Thompson focuses on that last question, but the whole case highlights a problem for employers: If an employee files a discrimination complaint, who must the employer treat extra-carefully so as to avoid retaliation claims?

Justice Alito seemed particularly concerned with this dilemma, asking Plaintiff's counsel:
[D]oes it include simply a good friend? Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?
The Plaintiff in this case, Thompson, essentially argues that it can be anyone, so long as the Burlington Northern test is met (employer's action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination).

Acting Deputy Solicitor General, Leondra Kruger on behalf of the United States, faced similar questioning from Alito:
[W]hat is the employer supposed to do . . . . Do you call everybody in from the company and you say, now, is -- you know, was -- are these people dating? Did they once date? Are they good friends? What are you supposed to do?
If Thompson wins (and Paul Secunda at Workplace Prof Blog predicts an 8-1 ruling in his favor), then employers will face a real problem in determining which employees pose a retaliation risk following a discrimination complaint.

Even if Thompson loses, there is still a possibility that the complaining employee can file suit based on the employer's action against someone to whom he or she has some relation (or relationship). As Justice Scalia points out, if the original complainant can file suit:
Then we still have the same problem, that the employer doesn't know whom he has to treat with kid gloves.
I guess "kid gloves" is one way to put it. But yes, Scalia has a point in that employers will have trouble evaluating the retaliation risk of their employees.

The outcome of this case is not as important as the rule the court lays down. Hopefully it will provide some guidance to employers wishing to analyze associational retaliation risks. Regardless of the outcome, I'm guessing serious questions will remain.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor & employment law practice groups.

Monday, December 6, 2010

SCOTUS to Rule on "Largest Employment Class Action in History"

The Supreme Court issued an order today granting the petition for certiorari in the "largest employment class action in history." The claim to history's largest comes from Wal-Mart's petition to the Court. The Supreme Court has agreed to answer question 1 from the cert. petition:
Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief~and, if so, under what circumstances.
Additionally, the Court will review: "Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

The Ninth Circuit certified the humongous class, described in Wal-Mart's petition as:
This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars . . . .
Needless to say, this case will have huge implications for class action claims in the future.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor & employment law practice groups.

Sunday, December 5, 2010

Unreported Cases Become Persuasive in Pennsylvania Commonwealth Court

I don't get excited about changes to courts' internal operating procedures very often, but I think this one's pretty exciting! Effective January 1, 2011, unreported cases will carry persuasive value in the Commonwealth Court of Pennsylvania (an intermediate appellate court). The new Internal Operating Procedure (IOP) states:
§ 414. Citing Judicial Opinions
An unreported opinion of this court may be cited and relied upon when it is relevant under the doctrine of law of the case, res judicata or collateral estoppel. Parties may also cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent. A single-judge opinion of this court, even if reported, shall be cited only for its persuasive value, not as a binding precedent.
Previously, parties were not permitted to cite unreported opinions except as they pertained to law of the case, res judicata or collateral estoppel.

I have always felt that unpublished cases carry some value, or at least provide some insight into how a Court has addressed an issue. There are compelling counterarguments, especially that the opinions were never intended to be relied upon. I still think the unreported cases are helpful if considered only as information about previous applications of the law and not binding precedent.

This is just one of many amendments to the Court's IOPs - See the Court's memorandum Re: Amendment to Commonwealth Court Internal Operating Procedures 414, 211, 123, 126, 201, 221, 223, 242, 243, 291, 311, 321, 331 and 442.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, December 2, 2010

Home Health Care Aides Entitled to Overtime in PA - COTW #18

In Bayada Nurses, Inc. v. Dept. of Labor & Indus., 2010 WL 4630856 (Pa. Nov. 17, 2010), the Pennsylvania Supreme Court held that home health care aides employed by an agency are likely entitled to overtime pay under the Pennsylvania Minimum Wage Act (PMWA). More specifically, they are not exempt under the "domestic services" exemption.

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.

Additional Coverage:
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.