Background:
In June 2008, the Commonwealth claimed that the federal Fair Labor Standards Act (FLSA) "required" the Gov. to furlough so-called non-essential employees when a budget was not passed on time. AFSCME, along with other Unions, sued the Gov. to obtain a declaration of law that no furloughs were required because the FLSA trumped provisions in the PA State Constitution which state that the government can only spend money pursuant to an appropriations act.
A single Commonwealth Court judge ruled that the Gov. was not only legally authorized to furlough employees, but was also prohibited from paying employees until a new appropriations act was passed. That decision lead to this year's payless paydays.
Hearing:
AFSCME attorneys argued that the decision was unsupported by the law and must be overturned by the Court. They cited that 75,000 Commonwealth employees went 22 days without paychecks as a result of the lower court's action and all of those employees encountered serious hardships.
We argued that if the lower court decision was to stand, employees could go countless days, weeks and even months without a paycheck. And that the lower court's opinion was unprecedented and there was not one other judicial decision in the U.S. that ruled in a similar manner.
We argued that the Court should overturn and vacate the Commonwealth Court opinion so that payless paydays would never happen again in PA! We also argued that the Court should definitively rule that the FLSA is the supreme law of the land and that it preempts restrictions in the state constitution so that the Gov. will be constitutionally authorized to keep all employees covered by the FLSA employed, and pay them in a timely fashion even when the General Assembly fails to adopt a budget in a timely fashion.
Pending Decision:
The Justices of the Supreme Court were very interested in AFSCME's arguments and asked difficult questions of the Governor's lawyers. A decision is not anticipated for six months.
U.S. Dept. of Labor Update
In response to the thousands of you who filed complaints with the US Dept. of Labor (DOL), the Sec. of Labor appeared ready to do something to stop payless paydays. DOL lawyers started making serious inquiries about what was happening in PA in very late July. At their request, our lawyers sent them all of the papers which had been filed. Additionally, contacts were made with the Sec. of Labor urging swift action.
On the eve of passage of the supplemental appropriations act, which resulted in paychecks being cut, DOL issued Guidance which made it clear that under the FLSA employees must be paid on time, even if they are public employees. The Guidance also made it clear that there was no basis under the FLSA to distinguish between so-called essential and non-essential employees.
AFSCME attorneys have made repeated inquires of DOL to find out if it intends to pursue a lawsuit against Gov. Rendell for liquidated damages for employees for payless paydays. We were advised on September 24, 2009 that the Dept. had made a decision to not file suit against the Commonwealth in light of the fact that employees had all since been paid any money that was due.
Unfortunately, as a result of a 2002 decision of the U.S. Supreme Court, a state employee or an employee's union cannot file suit in either state or federal court to enforce employee's rights under the FLSA. The only remedy for state employees is to file complaints with DOL and hope that the Sec. of Labor will file suit on their behalf.
AFSCME has grievances pending against the Commonwealth seeking interest payments to all who missed timely payment. An arbitrator has not been selected but we intend to vigorously pursue this grievance.
