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Am I Entitled to Overtime in Pennsylvania?

Workers in the United States are fortunate enough to be protected by a number of state and federal laws that provide them with workplace rights and prohibit discriminatory and unfair employment practices. As you probably already know, most employers are required to pay most employees at least a minimum hourly wage in the U.S. You may, however, be unsure whether or not you are entitled to overtime wages. Navigating the often confusing, and sometimes conflicting, state and federal employment laws and regulations can be difficult which is why you should always consult an employment attorney with specific questions and concerns regarding overtime wages or any other aspect of the employee – employer relationship. As an employee though, you should have at least an overall understanding of the both the federal and Pennsylvania overtime wage laws.

Overtime wages are governed, at the federal level, by the Fair Labor Standards Act, or FLSA. The FLSA requires a covered employee to be paid overtime wages at the rate of one and one-half the employee’s regular hourly wage for all time worked beyond 40 hours in a workweek. The FLSA defines a workweek as “a fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods.” The workweek may begin on any day of the week and at any time of the day. Different groups of employees may have different starting dates and times as long as the dates and times remain consistent.

An employer may not average time worked over the course of two (or more) weeks. For example, let’s day you are paid an hourly wage of $10 per hour, are paid every two weeks, and that your workweek begins at 6:00 a.m. each Monday. Your work 46 hours the first workweek and 36 hours the second workweek. Your employer would be required to pay you for six hours of overtime at a rate of $15 per hour plus your regular hourly pay for the remaining 76 hours for a total of $850. While that may all sound rather straightforward, it can become complicated quickly.

Despite the fact that many employees actually like the concept, “banking” hours or “comp” time is not permitted under the FLSA overtime rules. “Comp” time allows an employer to avoid paying overtime to an employee by letting the employee “bank” the overtime hours for use at a later time. In the above example, instead of getting paid for your six overtime hours during this pay period those hours would be put in your “comp time bank” for you to use in the future. A month from now you might need to take six hours off that week. You could use your six “banked” hours at that time, allowing you to be paid even though you did not actually work those hours. The FLSA prohibits this type of practice.

There are also a number of exclusions to the overtime wage requirements found in the FLSA. Some of the most common exclusions include:

  • Executive, administrative, professional and outside sales employees
  • Computer professionals
  • Commissioned sales people
  • Drivers, driver's helpers, loaders and mechanics
  • Seasonal and recreational establishment employees
  • Outside sales people
  • Highly compensated employees

In order for your employer to avoid paying you overtime on the basis that you fit into one of the exclusions you must pass the test associated with that category. Most employers are careful to ensure that an employee truly qualifies for an exclusion before deciding not to pay overtime wages because the penalties for erroneously claiming an exclusion can be substantial.

  1. Along with the federal FLSA, the Pennsylvania Minimum Wage Act (PMWA) also governs overtime wages for Pennsylvania employers and employees. Although the overtime wage provisions of the PMWA are substantial similar to those found in the FSLA, there are some differences. When the two laws conflict, the employer must follow the provision that provides the most benefits to the employee. For instance, the FLSA allows an employer to avoid paying overtime to “highly compensated employees,” defined as those employees earning over $100,000 per year. The PMWA, however, does not provide for such an exclusion. Therefore, a Pennsylvania employer may not avoid paying overtime wages on the basis of the highly compensated employee exclusion found in the FLSA because Pennsylvania law provides the employee with more benefits.
Employment LawScott Rothman