Sunday, July 29, 2012

Pennsylvania Act 109: "8 and 80" Rule for Healthcare Workers & More

Apologies in advance for a post that has a limited audience - a state law affecting specific industries. Pennsylvania Act 109 amends the Minimum Wage Act (copy showing changes here). As the Department of Labor and Industry describes Act 109:
The amendment adopts the federal Fair Labor Standards Act’s “8 and 80” rule for individuals employed in hospitals or establishments primarily engaged in the care of the sick, aged, or mentally ill people. Under the 8 and 80 system, employers and employees can agree to calculate overtime on a 14-day, 80-hour work period rather than the traditional 40-hour workweek. Therefore, overtime wages are required when an employee works in excess of 8 hours in any workday and more than 80 hours in a 14-day work period.
One interesting aspect of the Act is that it incorporates by reference the FLSA, instead of enacting the actual text from the FLSA:
An employer shall not be in violation of this subsection if the employer is entitled to utilize, and acts consistently with, section 7(j) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 207(j)) and regulations promulgated under that provision.
Question for you statutory construction buffs: What if the incorporated section changes? Are PA employers exempt if they comply with the amended FLSA? Or are PA employers only exempt if they comply with the FLSA as it stood st the time the PA law was enacted? I'd argue the former, but would be willing to entertain arguments in support of the latter.

One more quick note on Act 109, it also:
provides an overtime exemption for air carrier employees who work in excess of forty hours in a workweek as a result of a voluntary agreement among employees to trade scheduled work hours or air carrier employees who have collective bargaining agreements or other agreements that cover the required hours of work and compensation.
Not to be too particular or anything . . . .

Image: Personal photo of Capitol Building in Harrisburg, PA