Although the myths about employee pay seem to be nearly unending, the following three myths seem to be some of the most common.
Myth #1: The Pennsylvania Minimum Wage Law (PMWL) and Fair Labor Standards Act (FLSA) require employers to give their employees breaks.
Myth Busted: Notwithstanding child labor law’s mandated breaks for minors, the PMWL and FLSA do not require breaks for adult employees. In fact, aside from industry-specific law, such as mandatory breaks for truck drivers, there is no generally applicable federal or Pennsylvania state law that requires breaks for employees. That aside, if you decide to give employees breaks, employees must be paid for rest breaks lasting 20 minutes or less.
Myth #2: Employers must give employees holiday pay.
Myth Busted: Except where a contract provides otherwise, employers do not need to pay employees at a premium “holiday” rate. The specific answer is different for non-exempt and exempt employees.
Unless a contract requires otherwise, you do not need to give holiday pay to non-exempt employees, meaning those employees who are not exempt from the minimum wage and overtime requirements of the PMWL and FLSA. If you require your non-exempt employees to work over the holidays, they must be compensated for their hours worked. But, the law does not require you to pay a premium rate for holidays. (Unless, of course, the hours worked for the holiday pushes the employee over 40 hours in the workweek, which triggers the statutory overtime rate of time and a half.)
That aside, there is a somewhat different answer for exempt employees. Employees who receive a salary and meet the test for exempt employee status must be paid their full salary for any week where some work is performed. When the office is closed, the employer is still required to pay exempt employees their full salary. That being said, absent an applicable contract, there is no requirement to pay exempt employees at a premium rate for holidays, whether worked or not worked.
Myth #3: Employees do not need to be paid overtime when they are making up missed work from a prior week.
Myth Busted: Overtime is owed to non-exempt employees who work more than 40 hours in a workweek…period. It does not matter how much they worked in a prior week. It does not matter how much they work on average. It does not matter whether the employees agreed to work without overtime.
Overtime may, however, be lawfully avoided through the strategic delegation of make-up work. For example, you may divide up tasks between multiple employees, or you may have the employee who missed work make-up the work more gradually to avoid totaling more than 40 hours in a workweek. (For unionized employers, note that there could be some union push back from the reallocation of work, which may require you to meet and discuss with the union leadership.)
If you have any questions about the above, you may contact your own legal counsel. You may also contact me at firstname.lastname@example.org. I would love to hear from you!
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.