In the Summer 2007 edition of the Wage and Hour Quarterly, we reviewed the Supreme Court’s disappointing holding in Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007), that home health aids are exempt from the Fair Labor Standards Act’s minimum wage and overtime provisions.  On a more optimistic note, however, we observed that home health aids might be entitled to overtime pay under Pennsylvania’s more worker-friendly Minimum Wage Act.

Recent filings in a pending Pennsylvania Commonwealth Court proceeding entitled Bayada Nurses, Inc. v. Commonwealth of Pennsylvania, Department of Labor and Industry, Docket No. 477 M.D. 2007, reveal that the Pennsylvania Department of Labor and Industry agrees with The Winebrake Law Firm’s view that the Pennsylvania Minimum Wage Act (PMWA) entitles home health aids to overtime pay.  Also, in the absence of an exemption, the PMWA may entitle home health aids to be paid for time spent traveling between clients during the workday.

Home health aids are among the most overworked and underpaid workers in Pennsylvania.  They usually are employed by third-party home health agencies, and their jobs consist of visiting the homes of elderly or disabled clients to assist with daily living activities such as dressing, bathing, housekeeping, and cooking.  Many home health aids work over 40 hours per week without receiving the time-and-one-half overtime premium, and they almost never are paid for the substantial time they spend traveling between clients during the workday.

Chief Judge Donetta Ambrose of the Western District of Pennsylvania recently granted conditional certification on behalf of an FLSA class of Pittsburgh, Pennsylvania hospital workers in Kuznyetsov v. West Penn Allegheny Health System, Inc., 2009 U.S. Dist. LEXIS 47163 (W.D. Pa. June 1, 2009).  There, the hospitals made an automatic 30-minute pay deduction for meal breaks.  See id. at *12-14.  The hospitals also required that employees who work during meal breaks report their work to the timekeeper so that the 30-minute deduction could be altered.  See id. at 13.  Based on these policies, Chief Judge Ambrose conditionally certified the FLSA class.  After emphasizing that it is the employer’s duty to affirmatively ensure that work is not performed during meal breaks, see id. at 14, the Court conditionally certified the class on grounds that “[a]rguably, [the hospitals'] policies shift the responsibility to the employees” in violation of the FLSA, id. at 14.  At the conditional certification stage, it did not matter that the hospitals had offered evidence of thousands of instances in which automatic deductions were cancelled.  See id.  Such evidence did not “alter[] the fact that the policies apply to all non-exempt employees and arguably shifts the responsibility to the employees to ensure that the deduction is cancelled.”  Id. at *15-16.Our law firm currently is representing hospital workers who allegedly were denied their full meal breaks in Philadelphia.  Feel free to give us a call if you have any questions or would like to discuss the legal rights of you or your clients.