Pennsylvania Wage Attorney Update: Third Circuit Deals Another Blow to Employers’ Attempts to Apply “Portal-to-Portal” Restrictions to the Pennsylvania Minimum Wage Act

On November 11, 2018, we reported on a terrific decision by the Washington County (PA) Court of Common Pleas in which the Judge held that the FLSA’s “Portal-to-Portal Act” restrictions on compensable work do not apply to claims for unpaid wages under the Pennsylvania Minimum Wage Act (“PMWA”). You can read that post by clicking HERE. This was good news because the Portal-to-Portal Act renders non-compensable many activities that workers perform at the beginning and end of their workday. Meanwhile, in a case our law firm is handling against, we have requested that the Sixth Circuit Court Appeals certify to the Pennsylvania Supreme Court the question of whether the Portal-to-Portal restrictions apply to the PMWA.

Well, on December 10, 2018, things got even more interesting when the Third Circuit Court of Appeals issued a non-precedential opinion in an appeal styled Ralph Smith v. Allegheny Technologies, Inc., No. 18-1707. A copy of the opinion is available HERE. In Smith, the defendant manufacturing plant had a unionized workforce. The plant locked out the union workers, who responded by picketing the plant. The plant then brought in non-union replacement workers, who were required to ride through the picket line on busses provided by the plant. Some of these replacement workers eventually filed a lawsuit. The replacement workers argued that the FLSA and PMWA required the plant to pay them for the time spent boarding the busses and traveling through the picket line. Federal District Judge Mark Hornak disagreed with the replacement workers. He threw out the case, finding that the pre-shift travel time was non-compensable under Portal-to-Portal principles. On appeal, the Third Circuit agreed with Judge Hornak’s assessment under the FLSA and held that the challenged time was non-compensable under the Portal-to-Portal Act. Crucially, however, the Third Circuit reversed Judge Hornak’s PMWA holding. The Circuit Court explained: “But Pennsylvania has not enacted the Portal-to-Portal Act, and Pennsylvania law requires compensation for a broader range of activities, including travel time, than the FLSA.” Slip. Op. at pp. 7-8.

The Third Circuit’s Smith decision is good news for lawyers and advocates who — in the name of workers’ rights and states’ rights — continue to fight for a vibrant PMWA that extends workplace protections beyond the confines of the FLSA.

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