Trial Engrossment of Amendment A03913 to Senate Bill 0079 P.N. 0054, Regular Session 2019-2020

A03913

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

Session of

2019

INTRODUCED BY TARTAGLIONE, FONTANA, SCHWANK, STREET, HUGHES,

COSTA, BREWSTER AND BROWNE, JANUARY 23, 2019

REFERRED TO LABOR AND INDUSTRY, JANUARY 23, 2019

AN ACT

Amending the act of January 17, 1968 (P.L.11, No.5), entitled

"An act establishing a fixed minimum wage and overtime rates

for employes, with certain exceptions; providing for minimum

rates for learners and apprentices; creating a Minimum Wage

Advisory Board and defining its powers and duties; conferring

powers and imposing duties upon the Department of Labor and

Industry; imposing duties on employers; and providing

penalties," further providing for definitions.; providing for

Federal compliance; and further providing for exemptions.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 3(d) of the act of January 17, 1968

(P.L.11, No.5), known as The Minimum Wage Act of 1968, is

amended to read:

Section 3. Definitions.--As used in this act:

* * *

(d) "Wages" mean compensation due to any employe by reason

of his or her employment, payable in legal tender of the United

States or checks on banks convertible into cash on demand at

full face value, subject to such deductions, charges or

allowances as may be permitted by regulations of the secretary

under section 9.

"Wage" paid to any employe includes the reasonable cost, as

determined by the secretary, to the employer for furnishing such

employe with board, lodging, or other facilities, if such board,

lodging, or other facilities are customarily furnished by such

employer to his or her employes: Provided, That the cost of

board, lodging, or other facilities shall not be included as a

part of the wage paid to any employe to the extent it is

excluded therefrom under the terms of a bona fide collective-

bargaining agreement applicable to the particular employe:

Provided, further, That the secretary is authorized to determine

the fair value of such board, lodging, or other facilities for

defined classes of employes and in defined areas, based on

average cost to the employer or to groups of employers similarly

situated, or average value to groups of employes, or other

appropriate measures of fair value. Such evaluations, where

applicable and pertinent, shall be used in lieu of actual

measure of cost in determining the wage paid to any employe.

In determining the hourly wage an employer is required to pay

a tipped employe, the amount paid such employe by his or her

employer shall be an amount equal to: (i) the cash wage paid the

employe which for the purposes of the determination shall be not

less than the cash wage required to be paid the employe on the

date immediately prior to the effective date of this

subparagraph; and (ii) an additional amount on account of the

tips received by the employe which is equal to the difference

between the wage specified in subparagraph (i) and the wage in

effect under section 4 of this act. The additional amount on

account of tips may not exceed the value of tips actually

received by the employe. The previous sentence shall not apply

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with respect to any tipped employe unless:

(1) Such employe has been informed by the employer of the

provisions of this subsection;

(2) All tips received by such employe have been retained by

the employe and shall not be surrendered to the employer to be

used as wages to satisfy the requirement to pay the current

hourly minimum rate in effect; where the gratuity is added to

the charge made by the establishment, either by the management,

or by the customer, the gratuity shall become the property of

the employe; except that this subsection shall not be construed

to prohibit the pooling of tips among employes who customarily

and regularly receive tips. An employer that permits a customer

to pay a gratuity by credit card shall pay the employes the full

amount of the gratuity that the customer indicated on the credit

card slip without deduction for any credit card payment

processing fee or cost that may be charged to the employer by

the credit card company. Payment of a gratuity made by a

customer using a credit card shall be made to the employe not

later than the next regular payday following the date the

customer authorized the credit card payment.

* * *

Section 2. This act shall take effect in 60 days.

Section 2. The act is amended by adding a section to read:

Section 3.1. Federal Compliance.--The minimum wage and

overtime requirements under this act shall be applied in

accordance with the minimum wage and overtime provisions of the

Fair Labor Standards Act of 1938 (29 U.S.C. §§ 201-219) and the

regulations promulgated under the Fair Labor Standards Act of

1938, except when a higher standard is specified under this act

or regulations promulgated under this act.

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Section 3. Section 5(a)(3), (4), (5) and (11) of the act are

amended and the section is amended by adding a subsection to

read:

Section 5. Exemptions.--(a) Employment in the following

classifications shall be exempt from both the minimum wage and

overtime provisions of this act:

* * *

[(3) Delivery of newspapers to the consumer;

(4) In connection with the publication of any weekly,

semiweekly, or daily newspaper with a circulation of less than

four thousand, the major part of which circulation is within the

county where published or counties contiguous thereto;]

(5) In a bona fide executive, administrative, or

professional capacity (including any employe employed in the

capacity of academic administrative personnel or teacher in

elementary or secondary schools) [or in the capacity of outside

salesman (as such terms are defined and delimited from time to

time by regulations of the secretary, except that an employe of

a retail or service establishment shall not be excluded from the

definition of employe employed in a bona fide executive or

administrative capacity because of the number of hours in his or

her workweek which he or she devotes to activities not directly

or closely related to the performance of executive

administrative activities, if less than forty percent of his or

her hours worked in the workweek are devoted to such

activities);] or in the capacity of outside salesman, a highly

compensated employe, computer systems analyst, computer

programmer, software engineer or other similarly skilled worker;

* * *

[(11) In employment as a switchboard operator employed by an

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independently owned public telephone company which has not more

than seven hundred and fifty stations;]

* * *

(d) The following shall apply to subsection (a)(5):

(1) When the classifications under subsection (a)(5) are

required to be compensated on a salary or fee basis in

accordance with the Fair Labor Standards Act of 1938 (29 U.S.C.

§§ 201-219) and 29 CFR Pt. 541 (relating to defining and

delimiting the exemptions for executive, administrative,

professional, computer and outside sales employees), as amended,

employers may use the payment of nondiscretionary bonuses,

incentives and commissions, paid annually or more frequently, to

determine up to ten percent of the salary or fee amount. An

employer may designate any fifty-two-week period in determining

annual payments. If an employer fails to designate in writing

the annual payment time period in advance, a calendar year will

apply.

(2) Effective January 1, 2023, the salary or fee basis under

paragraph (1) may be updated and delimited from time to time by

regulations of the secretary.

(3) The terms under subsection (a)(5) shall be defined in

accordance with the Fair Labor Standards Act of 1938 and 29 CFR

Pt. 541, as amended, except as otherwise provided under this act

or updated and delimited from time to time by regulations of the

secretary after the effective date of this section.

Section 4. This act shall take effect in 90 days.

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