Pennsylvania Overtime Lawyer Update: Three Pennsylvania Decisions Holding that the Federal Portal-to-Portal Act Restrictions on Compensable Time Do Not Apply to Claims Under the Pennsylvania Minimum Wage Act (PMWA)

We recently filed a brief in our security clearance case arguing that the Federal Portal-to-Portal Act’s restrictions to compensable time do not apply to claims under the Pennsylvania Minimum Wage Act (PMWA). You can access the brief by visiting our page.

In the brief, we explain that, sometimes the PMWA is silent regarding an FLSA provision that is especially beneficial to employers. Faced with this circumstance, some employers will try to convince Pennsylvania judges to construe the PMWA’s silence as an implicit adoption of the FLSA provision. These efforts generally fail. And such failure is not surprising. The PMWA, after all, is interpreted expansively to the benefit of employees, and the state’s Supreme Court has unanimously instructed that the PMWA should not be read in pari materia with the FLSA. See Bayada Nurses, Inc. v. Pennsylvania Dept. of Labor & Industry, 8 A.3d 866 (Pa. 2010).

Consistent with the above, three separate Pennsylvania courts have rejected employers’ attempts to graft Portal Act § 4’s compensability limits onto the PMWA.  These three opinions have been authored by a federal judge in Scranton, a state trial judge in Washington County, and a unanimous panel of the Third Circuit. The opinions are described below:

In re Cargill Meat Solutions Wage and Hour Litig., 632 F. Supp. 2d 368 (M.D. Pa. 2008):

In Cargill, employees in a Pennsylvania beef plant brought claims under, inter alia, the FLSA and PMWA, alleging that Cargill failed to compensate them “for time spent donning, doffing, waiting for, gathering, maintaining, and sanitizing work-related clothing, gear, and equipment and for time spent traveling between the changing area and the production line before and after shifts and during break times.”  Cargill, 632 F. Supp. 2d at 371.  Since the plant was unionized, the employees were covered by a collective bargaining agreement.  See id. at 373.

The district court initially focused on the employees’ FLSA claim.  See id. at 376-92.  All agreed that, absent the collective bargaining agreement, the pre-shift activities at issue were compensable under Portal Act § 4.  See id. at 377-78.  However, according to Cargill, such activities were non-compensable under the Section 3(o) amendment to Portal Act § 4 because the activities (i) constituted “time spent in changing clothes or washing” and (ii) had been treated as non-compensable “by custom or practice under a bona fide collective-bargaining agreement.”  See id.  at 378.  The district court rejected this argument, see id. at 378-88, as well as some others relating to the FLSA claim, see id. at 388-92.

This brings us to the portion of Cargill that is relevant to the instant appeal.  Cargill argued that the employee’s PMWA claim was preempted by the FLSA to the extent the PMWA conflicted with Portal Act § 4, as amended by Section 3(o).  See id. at 392-94.  The district court rejected this argument.  See id.  First, the court explained that the FLSA contemplates that state wage laws can offer employees wage rights that rise above the “floor” established by the FLSA.  See id. at 393.  Next, focusing on the interplay between the Portal Act and Pennsylvania law, the court observed:  “The series of incidents which led to the Portal-to-Portal Act was litigation under the FLSA not state law legislation.”  Id. at 394.  Finally, and most importantly, the court explained that the Portal Act, as amended by Section 3(o), had no application to the PMWA claim:  “Neither the PMWA nor the PWPCL contain a counterpart to § 203(o) or other similar provisions. . . .  A more beneficent definition of hours worked embodied in the Pennsylvania statutes does not circumvent or nullify the purpose of § 203(o). . . . The provisions of the Portal Act and §203(o) ‘indicate Congress’s intent to better define the liability of employers under the FLSA. They do not, however, supplant the traditional power of the state to more generously regulate wage and hours via there [sic] own state regulations.’ Pennsylvania has not adopted a similar exception to § 203, and, as a result Pennsylvania law protects employees by not permitting unions and employers to negotiate away payment for donning and doffing of clothes as Congress has under the FLSA. As noted above, Cargill argues that it cannot comply with both the FLSA and Pennsylvania law regarding this matter. However, Cargill, in Pennsylvania, could comply with both laws by following the Pennsylvania law, which is more protective of individual employee rights, by paying its employees for donning and doffing of gear. Based on the entire scheme of the FLSA to protect workers and create minimum standards over which a state may more generously regulate, a successful § 203(o) defense would not preempt Plaintiffs’ PMWA and PWPCL claims.”  Id.

Bonds v. GMS Mine Repair & Maintenance, Inc., 2017 Pa. Dist. & Cnty. Dec. LEXIS 10622 (Pa. Com. Pl., Washington Cty. Dec. 12, 2017):

Bonds started out as a hybrid class/collective action in federal district court.  See Bonds v. GMS Mine Repair & Maintenance, Inc., 2014 U.S. Dist. LEXIS 89181 (W.D. Pa. July 1, 2014).  The plaintiffs were coal miners who sought to be paid under the FLSA and PMWA for various pre-shift activities such as attending mandatory safety meetings.  See id. at *15.  After discovery, the employer moved for summary judgment, and the district court set out to determine “whether the time that the underground mine workers spend attending pre-shift meetings is compensable under the FLSA, as amended by the Portal-to-Portal Act of 1947.”  Id. at *21.  In answering this question, the district court undertook an extensive analysis of the FLSA, the Portal-to-Portal Act, and the U.S. Supreme Court decisions applying the Portal-to-Portal Act.  See id. at *21-35.  The district court then granted summary judgment against the miners, reasoning that the pre-shift safety meetings were not compensable under the Portal-to-Portal Act.  See id. at *35-40.

Next, the district court turned to the miners’ PMWA claim.  See Bonds, 2014 U.S. Dist. LEXIS 89181, at *40-41.  The district court observed that “‘the Pennsylvania General Assembly has not in any way adopted the federal Portal-to-Portal Act.’”  Id. at *40 (quoting Ciarelli v. Sears, Roebuck & Co., 46 A.3d 643, 648 (Pa. 2012) (McCafferty, J. dissenting from dismissal of appeal as being improvidently granted)).  The district court then reasoned that, because the Portal Act’s applicability to the miners’ PMWA claim was a “novel issue of state[] law,” it would refrain from exercising supplemental jurisdiction over the PMWA claim.  See id. at *40-41.

In the wake of the district court’s ruling, the miners pursued their PMWA claim in the Pennsylvania Court of Common Pleas.  See Bonds v. GMS Mine Repair & Maintenance, Inc., 2017 Pa. Dist. & Cnty. Dec. LEXIS 10622 (Pa. Com. Pl., Washington Cty. Dec. 12, 2017).  Once again, the employer moved for summary judgment, arguing that the PMWA – like the Portal Act – rendered the miners’ pre-shift activities non-compensable.  See id. at *6-11.

The Common Pleas Court rejected the employer’s argument.  See Bonds, 2017 Pa. Dist. & Cnty. Dec. LEXIS 10622, at *6-11.  After explaining that the PMWA often provides Pennsylvania employees with greater protections than the FLSA, see id. at *9-10, the Court explained that the Portal Act and Integrity Staffing were irrelevant to the miners’ claim:  “Although the Integrity Staffing case significantly changed the scope of the federal law regarding compensation of pre- and post-shift work activities, the case ultimately has no impact on Plaintiff’s [P]MWA claim.  As previously stated, the law in Pennsylvania provides greater protection for employees than the federal law, and Pennsylvania has refused to adopt the FLSA.  The standard set forth in Integrity Staffing is inapplicable to plaintiffs’ state law claims, therefore Defendant’s Motion for Summary Judgment is DENIED.”  Id. at *11.

Smith v. Allegheny Technologies, Inc., __ Fed. Appx. __, 2018 U.S. App. LEXIS 34700 (3d Cir. Dec. 10, 2018):

Most recently, the Third Circuit issued a non-precedential opinion in Smith.  The opinion is notable for two reasons.  First, it refuses to follow another non-precedential opinion, entitled Espinoza v. Atlas Railroad Construction, LLC, 657 Fed. Appx. 101 (3d Cir. 2016), and states that Espinoza “has no persuasive authority under the rules of our Court.”  Smith, 2018 U.S. Dist. LEXIS 34700, at 9.  This is notable because, in the opinion below, the district court cited to Espinozasee Opinion, RE 86, Page ID # 2358-2859.

More importantly, Smith held that Portal Act § 4’s limitations on compensability do not apply to PMWA claims.  In Smith, temporary employees were hired to work in a steel plant while the unionized permanent employees were on strike.  See Smith, 2018 U.S. Dist. LEXIS 34700, at *1-3.  This required the temporary employees to ride in company-supplied vans across union picket lines at the beginning of each workday.  See id.  The temporary employees eventually filed suit, seeking unpaid wages under the FLSA and the PMWA for time spent riding in the vans.  See id.  The district court dismissed both claims.  See id.

On appeal, the Third Circuit affirmed the dismissal of the FLSA claim. See Smith, 2018 U.S. Dist. LEXIS 34700, at *3-8.  The Court explained that the employees’ travel claims were non-compensable under Portal Act § 4 and Integrity Staffing.  See id.

Crucially, however, the Third Circuit vacated the district court’s dismissal of the PMWA claim.  See Smith, 2018 U.S. Dist. LEXIS 34700, at *8-9.  The Court explained that the district court’s Portal Act/Integrity Staffing analysis was irrelevant to the PMWA claims:  “The District Court concluded that Smith and Harris’ claim under the PMWA failed for “the same reasons that the Court concluded that [they] cannot establish that commuting across the picket line in Strom’s vans was either a principal activity or integral and indispensable to a principal activity of their employment.” J.A. at 26. 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. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307 (3d Cir. 2003), as amended (Nov. 14, 2003); In re Cargill Meat Sols. Wage & Hour Litig., 632 F. Supp. 2d 368, 394, 397-98 (M.D. Pa. 2008). Neither the principal activity nor the integral or indispensable test applies here.”  Id. at *8-9 (emphasis supplied).

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