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Not being paid overtime Pennsylvania

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  • Not being paid overtime Pennsylvania

    hello I live in PA and work for a company that does not pay overtime. i currently work as an order selector for a food distrabution company. i pull orders that get shipped out. I was told the company didnt have to pay overtime because they were grandfathered in under the old laws. It has come to my attention another company who does the same thing recently had to pay back overtime wages to its employees after they filed suite against them. A fellow employee approched me and asked me to join them in their quest to start a suite against my employer. im not sure as to what i can do because im not sure as to what the labor law specifically states as to who is eligible for overtime. Any advise would be greatly appreciated! thank you

  • #2
    Non exempt employees in Pa. are to be paid at least 1 1/2 times the regular rate of pay for all hours worked in excess of 40 in a workweek. I don't know what law is being talked about in your post.

    If you are due OT pay, you can file a wage claim with the Pa. Dept. of Labor & Industry or a lawsuit in court.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    • #3
      Wage claim/complaint form Pa -

      http://www.portal.state.pa.us/portal...=553573&mode=2
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        The idea that ANY company is grandfathered under old laws and thus exempt from paying overtime is complete, total and utter nonsense. For one thing, Federal law has required overtime since 1938. There is no way on God's green earth any company would have been made exempt by "grandfathering" from such a basic law for 72 years.

        There are two requirements before an employer can be considered exempt from overtime, and they must meet BOTH of them, not one or the other. One is that the company gross less than $500,000 per year; the other is that they engage in no interstate commerce whatsoever. Only if a company meets both criteria are they considered exempt, and over the last 72 years there have been many court cases, interpreting "interstate commerce" so broadly that it is virtually impossible to to escape having to pay overtime.

        So I think we can safely say that your employer is subject to overtime laws and is in violation if he is not paying it.

        Once it is established that the employer is required to pay overtime, we then look at the employees. A non-exempt employee is entitled by Federal law to be paid overtime any time he works over 40 hours a week. (Just so there is no confusion, that is WORKED over 40 hours, not PAID 40 hours. Vacation, sick, PTO, holiday, or other paid leave is not included in overtime calculations unless a legally binding contract or CBA expressly says otherwise.) All employees are considered non-exempt until proven otherwise. It is the employer's burden of proof to show that an employee is not non-exempt. When DAW or Patty gets here, they can provide a link to the exemptions, but from what little you have told us about your job, I feel I am on safe ground classifying you as non-exempt.

        Does that help at all?
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          Sure sounds like non-exempt to me also based on info in post re duties.
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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          • #6
            Hi All -
            New to the forum but have a question on this thread - can you clarify please? I understood that there were some obscure type businesses that were exempt from paying overtime - Farming, seasonal employees, movie theaters, not sure of any others. Is that correct - or in order to qualify must they gross less than $500,000 and have no interstate commerce? Thanks for any clarification you can provide.

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            • #7
              Addicted79, please start your own thread instead of hijacking someone else's with a different type of question. Thank you.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                Actually, in this case I think he makes a valid point that should be addressed in view of my vehemence above.

                Seasonal establishments and agricultural positions, I will concede. Movie theatres, it depends on the position - that's really more of the non-standard exemptions than it is an exempt employer.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                • #9
                  Thanks CBG -
                  I was in fact asking the question because of what you had stated in your earlier answer - and was just trying to get clarification to insure that there was not any other types of businesses that had the same type of exemption. I did think my question went along with with what the first poster asked. Next time - I think I'll just stay out of the discussion.

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                  • #10
                    I think seasonal and agricultural may be the only exceptions, though Patty or DAW can correct me if I'm wrong. There are 100+ exemptions of specific positions, but that's the job, not the employer.

                    Your point was valid. Don't hesitate to speak up.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                    • #11
                      There are sort of two different things happening.
                      - When the FLSA law was passed in 1938, most employees where in fact not covered. No FLSA, means no minimum wage or overtime laws (at the federal level anyhow). HOWEVER, something like 6 major amendments to FLSA occurred. Past that, the economy changed. It used to be very common for workers to not be engaged in Interstate Commerce. Today it is very hard. Do you use cell phones? Or call some one across state lines using a line land phone? Buy stuff made across state lines? Sell your stuff across state lines? The courts have increasing called this is such a way that it is almost impossible for an employee to not pass the Interstate Commerce test. Meaning, it is 99.999999% likely (or maybe better) that any particular employee is covered by FLSA. And if not, then maybe by the corresponding state law. The whole argument is sort of on the level of the likelihood of being hit by lightning. It happens but does not happen often.
                      - Assuming that FLSA is applicable, and it almost always is, then all employees are subject to minimum wage and overtime unless/until the employer can support a very specific exception that says the employment is Exempt. And there are something like 100 or exceptions in the FLSA law to MW, OT or both. These exceptions are generally duties specific, but also often industry specific. Again, states do not always support the federal exceptions, so even if the employee falls under the federal exception, state rules must also be checked.
                      "Reality is that which, when you stop believing in it, doesn't go away".
                      Philip K. **** (1928-1982)

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                      • #12
                        ok that does clarify a little bit for me. from what ive heard from supervisors is they dont have to pay the overtime because the owner of the business also owns another business that is agricuktural and says that he stores his produce there and sells it from that location. the company doesnt meet either of the criteria cbg described. they gross over a million every year and sell food to businesses in MD, VA, NJ, WV, and a few others.

                        the thing im worry about is loosing my job if i would file a claim against them. i didnt think we were exempt but they refuse to pay us overtime. ive worked there for about two years now and routinely work an average of 90+ hours a week cause they say we have to stay until we are done pulling every order. the longest day that ive worked was a 16 hour day and then had to be back to work in 6 hours to start my next shift.

                        can they legally make you work that long wthout paying overtime. i was told without them payin the overtome they cant force us to work more than 12 hours. i was only told that after working that 16 hours shift.

                        thanks again

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                        • #13
                          I do not know the nuances because I have never worked in agriculture, but I do know that the overtime exception to agriculture is specific to employees who themselves actually do certain types of agriculture work. What is called a "duties" test, as well as the industry test. The owner owning a ag business by itself is nothing.

                          The following factsheet index covers most of the more obvious exceptions, including ag employers.

                          http://www.dol.gov/whd/fact-sheets-index.htm
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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                          • #14
                            FYI, in PA (and indeed in almost all other states) the number of hours you work in a day does not trigger overtime no matter how many it is; it's only the number of hours that you work in a week.
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                            • #15
                              OP, you can always file a wage claim with the state Dept. of Labor and let them make the decision.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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