Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Wednesday, November 24, 2010

PA Supreme Court: In-Home Nurses Entitled To Overtime Pay

On November 17, 2010, in the case of Bayada Nurses, Inc. v. Commonwealth of Pennsylvania Dept. of Labor and Industry, No.: 67 MAP 2008, the Pennsylvania Supreme Court held that under the Pennsylvania Minimum Wage Act of 1968 (PMWA), an employer that provides in-home nursing care to individuals is not exempt from paying its nurses overtime pay under the "domestic services," exemption to the PMWA.

The general rule under the PMWA is that an employer in Pennsylvania must pay its employees a minimum wage plus overtime for hours worked in excess of 40 hours per week. However, the PMWA provides for a number of exemptions to this general rule, including the "domestic services exemption," found at 43 P.S. section 333.105(a)(2). This section provides that a Pennsylvania employer is exempt from the minimum wage and overtime provisions of the PMWA for "domestic services in or about the private home of the employer." A subsequent regulation promulgated by the Pennsylvania Department of Labor and Industry interpreting this statutory provision defined "domestic services" as "work in or about a private dwelling for an employer in his capacity as a householder, as distinguished from work in or about a private dwelling for such employer in the employer's pursuit of a trade, occupation, profession, enterprise or vocation." 34 Pa. Code section 231.1(b). In other words, under the Department's regulation, the only employers who qualify for the "domestic services" exemption to the PMWA are those that employ individuals for work in or about a private dwelling that the employer itself owns or possesses. In other words, according to the Department, work sought to be exempted has to be performed for an employer in his or her capacity as a householder.

In this instance, the Department notified Bayada Nurses, Inc., that it would be performing a wage and overtime audit. Bayada Nurses, Inc., is a Pennsylvania corporation that offers nursing care, personal care, physical therapy and rehabilitation to pediatric, adult and geriatric clients. Bayada employs licensed nurses, registered nurses and home health care aides. Bayada paid its home health care aides an hourly wage, with each hour of service billed to the client. Bayada did not, however, pay those aides overtime. Upon being notified of a potential audit by the Department, Bayada filed a petition seeking a declaration that: (1) challenged the validity of the Department's regulation as improperly limiting the scope of the domestic services exemption; (2) Bayada's clients were "employers" for purposes of the PMWA, such that Bayada and its clients could both take advantage of the domestic services exemption; and (3) the domestic services exemption of the PMWA should be interpreted consistently with the exemptions of the federal Fair Labor Standards Act (FLSA).

The Supreme Court rejected all of Bayada's arguments, and held that: (1) the Department's regulation interpreting the term "domestic services" to exclude those employers who are not householders themselves was consistent with the plain statutory language of the PMWA; (2) Bayada was not entitled to take advantage of the domestic services exemption because in providing aides to clients, Bayada was not a "householder" employer; and (3) the domestic services exemption should not be read consistently with the FLSA because the FLSA sets a federal "floor" for minimum wage and overtime requirements, and states are free to adopt more restrictive (i.e., more employee-friendly) laws and requirements. Since the domestic services exemption to the PMWA, as interpreted by the Department, is more restrictive and employee-friendly than the exemptions set forth in the FLSA, consistency of interpretation was not warranted, and the PMWA domestic services exemption was not pre-empted by federal law. In upholding the reasonableness of the Department's regulation in the first issue, the Supreme Court held that the Department's regulation of "domestic services," which limited the exemption to only those employers who are "householders," was not inconsistent with the plain language of the PMWA, in that "the unambiguous language [of the domestic services exemption] in the statute focuses on one type of employer - a householder."

The impact of this decision will extend well beyond the facts and circumstances of this case. In upholding the Department's application of the domestic services exemption to only those instances where an employee is performing work for his/her employer in the employer's capacity as a "householders," the Pennsylvania Supreme Court sanctioned a rather bright-line rule. Going forward, it would seem that every business in Pennsylvania that provides some manner of "work in or about a private dwelling," will now required to pay its employees overtime for hours worked in excess of 40 per week, unless that employer also owns the private dwelling where the work is being performed. And, given the Department's rather broad definition of "domestic services," as encompassing "all work in or about a private dwelling," this rule would apparently also extend to professions such as landscapers, maids, and cleaning services, and perhaps even to electricians, plumbers, painters, and the like. Therefore, employers in these types of businesses in Pennsylvania who may have been relying upon the "domestic services" exemption to justify a non-payment of overtime to hourly wage workers, need to take another look at their books.

You can read the Pennsylvania Supreme Court's full Opinion here: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-105-2009mo.pdf

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