The Proof is In The Lawsuit


Note:  This is part of a series of posts detailing the 2009 Pennsylvania budget impasse.  To see all posts in this series, click here.

I was going to blog about the curious email I received from Metro Bank, but that will have to wait.  A commenter just posted a very interesting link regarding our now-in-effect budget impasse, and I wanted to share.

Governor Rendell is stating that the court has declared that the Pennsylvania Constitution supersedes the Fair Labor Standards Act.  And as you know, I have repeatedly said that this is incorrect.  The Rendell administration is only telling part of the story; because there is no conflict between the Constitution and the FLSA, neither supersedes the other.  The court has said that the FLSA doesn’t care where they money comes from, and in fact, not having money is not an excuse for violating the FLSA.  And in reviewing the court’s published opinion, I somehow missed this very enlightening footnote:

14 – Should the Governor choose not to furlough any State employees, it is for those employees to decide whether to continue to work given the uncertainty of the date of their next check and, if they do work, to decide whether to elicit the assistance of the U.S. Secretary of Labor in seeking liquidated damages under the FLSA should their wages not be paid “on time.”

Don’t take my word for it — read the case for yourself.  I’ve already covered key parts in my prior post, but I’ll post them again.  The following are quotes from the court’s opinion:

  • “Nevertheless, assuming that the FLSA requires the payment of wages on time … it does not follow that Article III, Section 24 of the Constitution has been nullified with respect to FLSA-covered employees.”
  • “(The) FLSA does not contain any instructions to employers that lack the funds to make payroll on time. It simply increases their liability by giving employees the right to seek liquidated damages.”
  • “(The) FLSA does not address the crisis that occurs when a State is deadlocked by a budget impasse. Accordingly, there is no basis for inferring that Congress intended to countenance, let alone require, a raid upon a State treasury for monies … until the day they are actually appropriated.”
  • “This Court concludes that there exists no conflict between the FLSA and Article III, Section 24; the two provisions address different concerns(emphasis added)

Our final paycheck is out in less than two weeks.  I’m one of the lucky ones that has some money set aside.  Plenty do not.  Our union has done nothing (oops, they’ve now given us cards to hand out to local merchants; I stand corrected, AFSCME has saved us all).  Our governor is wrong.  And our legislature is failing.

I wish I had a clever way to end this post, but I don’t.  This just sucks.


  1. P. says:

    Rise up.

  2. Robin says:

    I have a very good way to end the post!

    If you are paid on the 17th and if you have worked and if the budget has not been passed nor has an appropriations bill, and your paycheck is short, AND you want recourse,
    CALL the DOL’s Distrit Office of Wage and Hour in Wilkes Barre at
    (570) 826-6316

    Ask them how to file a complaint that will get the Secretary of Labor to intervene, get your check for you and provide you with the liquidated damages to which you are entitled. Then, follow through and file the complaint. The DOL cannot get involved unless the State is actually in violation. The 17th is the magic day in this household.

    Spread this message to as many of your fellow employees as you can. There IS strength in numbers.

    As for AFSCME…too bad they don’t stand united with PSCOA. Imagine the impact of that when the Governor and the legislature gets served!

  3. floor9 says:

    Thanks for the contact info, Robin. However, I want to point out to people that if you contact the DOJ to resolve your issues, you may forfeit your liquidated damages. When I dealt with a former employer via Labor & Industry, I learned that having a government entity handle my problems would cost me the ability to sue for damages.

    When in doubt, ask the field office (they have nothing to gain or lose either way) or consult with a lawyer (who may have something to gain if you decide to sue).

  4. BPSmith says:

    “The 1974 FLSA Amendment expanded coverage to include other State and local government employees that were not previously covered.”

    I am pretty sure you’ve already said that before, but I may have missed it for I’ve been doing other things.

    That being said and maybe I am just naive but how does state law trump federal law? Like you said, there is no conflict. Idiot. The Thug, not you floor9.

    Maybe it is the “Do whatever the hell you want decade” and no one sent us the memo?

    Sorry, I’ll stop blonging in your blog and go back to ranting in my own. Good luck and Good night.

  5. floor9 says:

    You’re right, BPSmith. The court’s decision speaks at great length about the intent of our federal system in maintaining state sovereignty. It seems that the court is mainly addressing Rendell’s assertion in general, because it quickly throws in a “HOWEVER”. The court very clearly states that because no conflict exists, the FLSA does not trump the state constitution — and, for that matter, the state constitution does not trump the FLSA.

    It’s kind of like if Governor Rendell went to the court and asked if the state liquor law overrules a municipality’s speed limit. The court would correctly say “no”, and exactly as in this case, would further clarify that the two laws have nothing to do with each other.

    In short, the court basically said “Why are you wasting our time with this?”.

  6. Robin says:

    Floor9…I understand. However, if we go back to the quote of Judge Leavitt from the PCSOA interesting link, we read the following:

    “Should the Governor choose not to furlough any State employees, it is for those employees to decide whether to continue to work given the uncertainty of the date of their next check and, if they do work, to decide whether to elicit the assistance of the U.S. Secretary of labor in seeking liquidated damaged under the FLSA (the Federal Fair Labor Standards Act) should their wages not be paid “on time”.

    I think the possible key in this issue of damages and whether or not to sue or consult Wilkes Barre is this part of her statement:
    “if they do work, to decide whether to elicit the assistance of the U.S. Secretary of Labor IN SEEKING LIQUIDATED DAMAGES UNDER the FLSA” etc etc.

    To me, that appears that the Sec has the ability to grant liquidated damages. I’ll be going to the act and reading it to see what is says. Regardless…it could take years to get the court suit settled while Boss Hogg continues with business as usual while we suffer. I’ll forego damages for a speedy resolution and a paycheck in the bank so I’m happy to be the one to call the Wilkes Barre office! I can’t afford to wait while the lawyers quibble.

  7. Robin says:

    Floor 9m here’s the content of the FLSA regarding back wages straight from the text at DOL, and I believe not paying on time may come under the same record keeping statutes as overtime:

    Recovery of Back Wages

    Listed below are methods which FLSA provides for recovering unpaid minimum and/or overtime wages.

    1. Wage-Hour may supervise payment of back wages.
    2. The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages.
    3. An employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney’s fees and court costs.
    4. The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

    An employee may not bring suit if he or she has accepted back wages under the supervision of Wage-Hour or if the Secretary of Labor has already filed suit to recover the wages.

    A 2-year statute of limitations applies to the recovery of back pay, except in the case of willful violation, in which case a 3-year statute applies.

  8. Jim says:

    It’s nice that someone is doing something. I work for the Courts. We were set to be paid on July 3. While payment was received, my check was 3 days short. I consider myself fortunate enough to be able to live a few months with zero incoming revenue, I wish all in my position could say the same.

  9. StateVolunteer says:

    I have already contacted an attorney. He is “moderately interested” in pursuing this matter, however, wants to wait until after today to move forward. I’m a mother of three. How they can expect me to come to work and not pay me, I dont know. Who’s paying my gas? Who is paying my daycare? Daycares will start having to shut down… the majority of their income comes from subsidized, of which they arent receiving payment for that either. I may have to wait a few years to receive my “damages”, but when I do, I’ll certainly have a drink on Uncle Eddie.

  10. Jo says:

    What did your Metro Bank email say?

  11. Jim says:


    If this lawyer you have contacted is truly interested in pursuing, I’m sure a lot of people will jump on board. I know I would happily jump on.

    Keep us posted?

  12. State Volunteer says:

    I’ll most definitely post back when I hear from him. I did inform him that it would most likely turn into a Class Action suit. Where I work, there are approximately 100 people… all of whom are pretty PO’ed.

  13. Also Courts says:

    I also work for the Courts. I was short that 3 days of pay on July 3rd. I am fairly younger and due to a bad past year, I was denied the PSECU loan. It’s like any other loan. Now I have asked my landlord to pay my rent late, I have to call GMAC to figure out what to do, & so on. While I’m trying to correct my credit, it looks as though going without pay, even just in the month of July, will only hinder it further. I am a non-exempt employee. I am VERY interested in hearing what this lawyer has to say. PLEASE KEEP US POSTED. It’s much appreciated.

  14. StateVolunteer says:

    I just wanted to comment on an article on (PAYDAY PAIN). Stacey Witalec states that most employees will not be eligible for Food Stamps, especially if they own a home, car, another person in household has income and that workers should take “advantage” of the “helpful” loans Rendell helped set up. This is INCORRECT information. Resources (homes, cars, etc.) DO NOT count for Food Stamps. Please spread the word to other state “employees” (volunteers) who, after reading that article, are discouraged to apply. If you fill out your applications now, they will be denied due to excess income if you received your full July 2 pay, HOWEVER, those applications will be held until the end of July and re-processed automatically at the end of the month. I work in the Welfare Dept… we are ready and waiting for the onslaught of state employee applications and have already filled out our own. You can apply online at

    I sent my attorney an email this morning and will post back when he replies.

  15. Jboob says:

    Take advantage of the PSECU loan offer. This isn’t the end of the world. You HAVE jobs, isn’t that the most important thing?

  16. StateVolunteer says:

    Jboob…. are you aware that there are numerous people who dont “qualify” for the loan offer? I know of many people in my office alone who were turned down. What should the people do who were declined these loans? Where should they go to get the money that they are currently working for and not receiving?

  17. Jboob says:

    Why didn’t they qualify?

  18. JOE says:

    Should you apply for FS the loan will not count as income. it is seen as a resource when you draw on it and it is in your account Resources are no longer counted for Food Stamps. All State workers should apply on 8/1/09 if they have not done so already.
    … Oh, and ask your caseworker if you qualify for a Diversion Grant…

  19. StateVolunteer says:

    they dont qualify because they have less than perfect credit. In this economy, there are many people who’s credit is less than stellar. I might also point out that Rendell’s description of the “no interest” loan is a little inaccurate. He should be calling them “low interest” loans. Why should anyone have to pay one cent of interest on money that is already earned by them. He is holding our checks, dispersing them whenever in a lump sum, taking more taxes out of them than would be if he dispersed them biweekly, AND people have to pay interest? Please. If it quacks like a duck, it IS a duck. Let me ask an obvious question here…. are you a state employee who’s paycheck is being withheld from them? My guess would be not. I’m wondering how I am going to feed my family next week. I would surely hope that when you lay your head on your pillow at night, that is one worry that wont keep you awake. I know it does me.

  20. Jboob says:

    The PSECU is no interest as long as it’s paid off in a certain amount of time (I forget the specific terms). And if you’re responsible enough to maintain a decent credit score, you should have no problem getting approved. As far as lying awake at night, I save money so I don’t have to do that when unexpected things happen. I just can’t believe the potential delay of a paycheck or two could cause someone’s financial world to come crashing down. Doesn’t anyone save anymore?

    I also do not agree with blaming the economy for people’s personal credit ratings. Of course, there are situations where your argument might hold water. But in most instances it comes down to people being irresponsible and spending more money than they have.

    I didn’t post with the intent to ruffle feathers. I do agree that if you work, you should be paid on time. But sometimes things don’t happen the way we’d like and there is little that can be done to fix it. I was trying to point out the positive in this, the fact that you are employed, period.

  21. Theresa says:

    Want to know why I was turned down? I don’t own my house – my parents do. It doesn’t matter that I make all the repairs and pay all the bills. The other reason? I have no recent credit history. The only thing I have are student loans. These loans were being paid for about 8 years then in default for a year and went back to being paid for the last 2 years. Before anyone gets on a soap box about not paying – blame the illegal alien from Cameroon (Africa) that was talking on his cell and driving. He lost control of his car, hopped a curb and knocked me 10′ into the air. Being out of work for 3 months put all my bills behind. Feeding my kids and keeping a roof over our heads was a priority – the student loans were not. The accident settlement was minimal and the car owners insurance company fought me all the way.

  22. Jboob says:

    “Of course, there are situations where your argument might hold water.”

  23. Theresa says:

    @JBoob – I would take a lay off right about now. At least my UC check would come every 2 weeks like clockwork. My net income would be only a little less than I am making now.
    I wish I worked in a career field that allowed me to save money. Unfortunately social service pays next to nothing. Add to that 3 kids, 1 disabled and a deadbeat ex-husband who is more than $15K in debt for child support and there isn’t much money to spare. Incidentally if you read my post above – I was turned down because I don’t live beyond my means. I don’t own credit cards and I don’t have credit accounts. I am in the same boat with people who overspent.
    Please try not to judge everyone by your own standards. Everyone’s situation is different but the bottom line is that if you work you should get paid – ON TIME.

  24. Jboob says:

    I am sorry for your extraordinary situation. And I do understand (not as much as you obviously) how negatively this may impact you.

    I’m not here to argue, I expressed my opinion. Good luck to you all, remember it’s only temporary.

  25. Also Courts says:

    Only “temporary”?? You have no idea for people like me that made ONE bad decision last year how “only temporary” affects them. They may not come to an agreement until August. So my 3 pays that I was to receive in July, I got 70% of ONE!!! Do you realize when you are trying to be fiscally responsible and fix a mistake that you made, by going without 3-4 checks is devastating. I’m so proud of you for saving!! I really am. But your attitude that it’s ONLY temporary is just unbelievable.

  26. Is ther any state workers who have a lawyer as a family member or know of someone who has a friend who is a lawyer?
    If it is indeed unlawful by the FLSA to with-hold payment for work they should all file suit. AFSCME should be leading the charge in this endeavor.Where the hell are they?

  27. Robin says:

    Also Courts, David Helminiak,

    It is indeed unlawful. It is difficult..or impossible I’ve heard…to sue as an individual for failure to comply with FLSA.

    That said, the Secretary, DOL can. I’ll say it again. Every state employee whose paycheck is late or missing or short on the 17th should be contacting the DOL Wage and Hour division office and lodge a complaint and request the intervention of the Secretary of Labor. This is not the State DOL…the Federal DOL. She cannot make the State pay…but she CAN counsel them and if all else fails, choose to sue on our behalf.

  28. Pawn4State says:

    Just checked our bank account and my husband’s (state worker) partial pay is in…exactly what we expected it to be. He is getting me his pay stub and I will be calling the US DOL District office in Wilkes Barre (Thanks everyone, esp. Robin for the helpful information.) to ask for the Secretary’s intervention…let’s see where this takes us.

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