PRIOR PRINTER'S NOS. 139, 1461, 2432
PRINTER'S NO. 2445
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
181
Session of
2023
INTRODUCED BY D. MILLER, BENHAM, SCHLOSSBERG, DELLOSO, SIEGEL,
GUENST, HARKINS, SANCHEZ, VENKAT, MADDEN, BURGOS, GALLOWAY,
FIEDLER, KRAJEWSKI, FREEMAN, STURLA, KINKEAD, FRANKEL, OTTEN,
O'MARA, HOHENSTEIN, WEBSTER, BOROWSKI, McNEILL, KHAN,
D. WILLIAMS, T. DAVIS, DALEY, WARREN, SHUSTERMAN, ISAACSON,
TOMLINSON, WAXMAN, GREEN, DONAHUE, BRENNAN, KIM, FLEMING,
MUNROE, SALISBURY, BULLOCK, BOYLE, RABB, CEPHAS, YOUNG,
SOLOMON, SCOTT, BRIGGS, KAZEEM, MAYES, KENYATTA AND CURRY,
MARCH 8, 2023
AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, AS AMENDED, DECEMBER 13, 2023
AN ACT
Establishing the Family and Medical Leave Program and the Family
and Medical Leave Fund; conferring powers and imposing duties
on the Department of Labor and Industry; and imposing
penalties.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Legislative intent.
Section 103. Definitions.
Chapter 3. Family and Medical Leave Program
Section 301. Family and Medical Leave Program.
Section 302. Powers and duties of department.
Section 303. Eligibility for family and medical leave benefits.
Section 304. Duration of benefits.
Section 305. Amount of benefits.
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Section 306. Contributions.
Section 307. Reduced leave schedule.
Section 308. Employment protections.
Section 309. Coordination of benefits.
Section 310. Employer waiver to use private plan.
Chapter 5. Administration and Procedures
Section 501. Notice.
Section 502. Erroneous payments and disqualification for
benefits.
Section 503. Elective coverage.
Section 504. Violations.
Section 505. Judicial review.
Section 506. Family and Medical Leave Fund.
Section 507. Annual report.
Section 508. Public education.
Section 509. Board.
Section 510. Regulations.
Section 511. Right of action.
Chapter 21. Miscellaneous Provisions
Section 2101. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Family and
Medical Leave Act.
Section 102. Legislative intent.
The General Assembly finds and declares as follows:
(1) Paid family and medical leave promotes the physical
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and emotional health of children and their families.
(2) Paid family and medical leave has a positive impact
on economic stability and ensures competitive viability for
all businesses, but particularly smaller businesses.
(3) The establishment of a paid family and medical leave
program is essential to public health, safety and welfare.
Section 103. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Application year." The 12-month period beginning on the
first day of the calendar week in which an individual files a
claim for family and medical leave benefits.
"Attesting third party." A law enforcement official,
licensed health care professional, licensed social worker,
victim advocate or victim service provider.
"Authorized reason for leave for a qualifying act of
violence." Any of the following:
(1) To seek or obtain medical attention, rehabilitative
services, accessibility equipment or other treatment related
to a physical or mental injury or disability caused or
aggravated by the applicable qualifying act of violence.
(2) To recover from a physical or mental injury or
disability caused or aggravated by the applicable qualifying
act of violence.
(3) To seek or obtain services from a victim service
provider in relation to the applicable qualifying act of
violence.
(4) To seek or obtain mental health treatment or other
counseling in relation to the applicable qualifying act of
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violence.
(5) To relocate or engage in the process of securing a
new residence due to the applicable qualifying act of
violence, including securing temporary or permanent housing
or enrolling children in a new school.
(6) To seek or obtain financial services or meet with a
financial professional to address financial issues resulting
from the applicable qualifying act of violence.
(7) To seek, obtain or provide child care or care to a
care-dependent adult necessary as a result of the applicable
qualifying act of violence.
(8) To seek or obtain legal services related to or
resulting from the applicable qualifying act of violence.
(9) To prepare for, participate in or attend a civil,
administrative or criminal legal proceeding relating to or
resulting from the applicable qualifying act of violence.
(10) To make modifications to a home or vehicle
necessary to create usability of and accessibility to the
home or vehicle due to an injury sustained in a qualifying
act of violence.
(11) To take any other action necessary to protect or
restore physical, mental, emotional or economic well-being as
a result of the applicable qualifying act of violence.
"Benefits." The monetary allowances payable to a covered
individual for family and medical leave during an approved
family and medical leave under the program in accordance with
this act.
"Board." The Family and Medical Leave Advisory Board
established under section 509.
"Claim." The filing of a written application with the
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department for the receipt of benefits.
"Covered individual." An employee, or a self-employed person
who elects coverage in accordance with section 503, who meets
the following requirements, as applicable:
(1) Is currently employed in this Commonwealth or was
previously employed in this Commonwealth within 120 days of
separation from employment.
(2) Meets the employment and income eligibility
requirements specified in section 303.
(3) Meets the requirements of this act as to the receipt
of benefits.
(4) Submits a claim that is approved by the department.
"Covered service member." A current or former member of the
armed forces of the United States, including a current or former
member of a reserve component of the armed forces of the United
States or the Pennsylvania National Guard, who meets any of the
following requirements:
(1) Is undergoing medical treatment, recuperation or
therapy.
(2) Is otherwise in outpatient status.
(3) Is on the temporary disability retired list for a
serious injury or illness incurred in the line of duty on
active duty in the armed forces of the United States or a
serious injury or illness that existed before the beginning
of the member's active duty that was aggravated by service in
the line of duty on active duty in the armed forces of the
United States, a reserve component of the armed forces of the
United States or the Pennsylvania National Guard.
"Department." The Department of Labor and Industry of the
Commonwealth.
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"Domestic violence." The occurrence of any of the following
acts between family or household members as defined in 23
Pa.C.S. § 6102(a) (relating to definitions):
(1) Intentionally, knowingly or recklessly causing, or
attempting to cause, bodily injury, serious bodily injury or
sexual violence.
(2) Placing another individual in reasonable fear of
imminent serious bodily harm.
(3) An act of domestic and other violence as defined in
55 Pa. Code § 3041.3 (relating to definitions).
(4) The infliction of false imprisonment under 18
Pa.C.S. § 2903 (relating to false imprisonment).
"Eligible employee." An employee who meets the requirements
of section 303(b)(1) and (2).
"Employee." An individual who is employed by an employer
doing business in this Commonwealth. The term includes a self-
employed individual.
"Employer." An employer as defined in section 103 of the
Workers' Compensation Act.
"Family." Includes any of the following:
(1) A biological child, adopted or foster child,
stepchild or legal ward, a child of a domestic partner or a
child to whom an employee stands in loco parentis, regardless
of age.
(2) A biological parent, foster parent, stepparent or
adoptive parent or legal guardian of an employee or an
employee's spouse or domestic partner or an individual who
stood in loco parentis when the employee or the employee's
spouse or domestic partner was a minor child.
(3) An individual to whom the employee is legally
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married under the laws of any state or a domestic partner of
an employee as registered under the laws of any state or
political subdivision.
(4) A grandparent, grandchild or sibling whether of a
biological, foster, adoptive or step relationship, of the
employee or the employee's spouse or domestic partner.
(5) An individual who regularly resides in the
employee's home or where the relationship creates an
expectation that the employee cares for the individual and
that the individual depends on the employee for care. The
term does not include an individual who simply resides in the
same home with no expectation that the employee care for the
individual.
"Family and medical leave." Benefits approved and payable to
covered individuals under the program.
"Fund." The Family and Medical Leave Fund established under
section 506.
"Health care provider." A health care center or a person,
including a corporation, university or other educational
institution licensed or approved by the Commonwealth to provide
health care or professional medical services, including a
physician, a certified nurse midwife, a mental health care
provider, a hospital, a nursing home, a birth center or any
other person determined by the department to be providing health
care services.
"Leave." The allotted amount of time approved by the
department for the receipt of benefits under this act.
"Medical certification." Written certification from a health
care provider on a form prepared by the department that verifies
the serious health condition prompting the filing of a claim and
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receipt of benefits by a covered individual under this act.
"Program." The Family and Medical Leave Program established
under section 301.
"Qualifying act of violence." An act, conduct or pattern of
conduct that could constitute any of the following, regardless
of whether anyone is arrested or charged with committing a
crime:
(1) Domestic violence.
(2) Sexual violence.
(3) Stalking.
(4) An act or conduct in which a person uses force to
cause or attempt to cause physical or mental injury to
another. For purposes of this paragraph, the act or conduct
does not include an act or conduct arising out of the
ownership, maintenance or use of a motor vehicle, except when
the person engaging in the act or conduct:
(i) intended to cause, or intended to threaten to
cause, physical or mental injury; or
(ii) was under the influence of alcohol or a
controlled substance.
(5) An act or conduct in which a person makes a
reasonably perceived or actual threat of physical or mental
injury to another. For purposes of this paragraph, the act or
conduct does not include an act or conduct arising out of the
ownership, maintenance or use of a motor vehicle, except when
the person engaging in the act or conduct:
(i) intended to cause, or intended to threaten to
cause, physical or mental injury; or
(ii) was under the influence of alcohol or a
controlled substance.
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"Qualifying exigency leave." Leave for the family member of
a military member deployed at home or abroad for the purposes
specified in 29 CFR 825.126 (relating to leave because of a
qualifying exigency).
"Retaliatory personnel action." As follows:
(1) Any threat, discipline, discharge, suspension,
demotion, reduction of hours or other adverse action taken
against an employee for exercising the rights and protections
afforded by this act.
(2) The term includes interference with or punishment
for participating in or acting on a complaint or appeal under
this act.
"Secretary." The Secretary of Labor and Industry of the
Commonwealth.
"Serious health condition." An illness, injury, impairment,
pregnancy, recovery from childbirth or physical or mental
condition as described in 29 U.S.C. § 2611(11) (relating to
definitions).
"Sexual violence." As defined in 42 Pa.C.S. § 62A03
(relating to definitions).
"Stalking." Conduct in which an individual does any of the
following:
(1) Engages in a course of conduct or repeatedly commits
acts toward another individual, including following the other
individual without proper authority:
(i) under circumstances which demonstrate either an
intent to place the other individual in reasonable fear
of bodily injury or to cause substantial emotional
distress to the other individual; or
(ii) which, as a result, intentionally, knowingly or
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recklessly places the other individual in reasonable fear
of bodily injury or causes substantial emotional distress
to the other individual.
(2) Engages in a course of conduct or repeatedly
communicates to another individual:
(i) under circumstances which demonstrate or
communicate either an intent to place the other
individual in reasonable fear of bodily injury or to
cause substantial emotional distress to the other
individual; or
(ii) which, as a result, intentionally, knowingly or
recklessly places the other individual in reasonable fear
of bodily injury or causes substantial emotional distress
to the other individual.
"Statewide average weekly wage." The average amount of
weekly wages as determined by the department on an annual basis
for each calendar year in accordance with the Workers'
Compensation Act, which shall be posted on the department's
publicly accessible Internet website.
"Unemployment Compensation Law." The act of December 5, 1936
(2nd Sp.Sess., 1937 P.L.2897, No.1), known as the Unemployment
Compensation Law.
"Victim." Any of the following:
(1) An individual against whom a qualifying act of
violence was committed.
(2) An individual who was physically present at the
scene of a qualifying act of violence and witnessed the
qualifying act of violence, who did not commit the qualifying
act of violence and who as a direct result:
(i) suffers physical or mental injury; or
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(ii) reasonably believes that the individual is
under the threat of physical harm.
"Victim advocate." An individual, whether paid or serving as
a volunteer, who provides services to victims under the auspices
or supervision of a victim service provider, a court or law
enforcement or prosecution agency.
"Victim service provider." As follows:
(1) An agency or organization that provides services to
victims.
(2) The term includes:
(i) A rape crisis center as defined in 42 Pa.C.S. §
5945.1(a) (relating to confidential communications with
sexual assault counselors).
(ii) A domestic violence program as defined in 23
Pa.C.S. § 6102(a).
(iii) An agency or organization with a documented
history of providing services to victims.
"Workers' Compensation Act." The act of June 2, 1915
(P.L.736, No.338), known as the Workers' Compensation Act.
CHAPTER 3
FAMILY AND MEDICAL LEAVE PROGRAM
Section 301. Family and Medical Leave Program.
(a) Establishment of program and payment of benefits.--
(1) Within one year of the effective date of this
paragraph, the department shall establish the Family and
Medical Leave Program.
(2) Except as provided under section 310, no later than
two years following the establishment of the program, the
department shall pay family and medical leave benefits as
specified in this act.
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(b) Required documentation.--The department shall establish
reasonable procedures and forms for filing a claim under this
act, the documentation necessary to support a claim, any
certification required from a health care provider for proof of
a serious health condition and any certification required from a
victim of a qualifying act of violence to support a claim.
(c) Notice of approved claim.--In addition to the notice
provided to an employer by an employee under section 501(d), the
department shall notify the employer within 10 business days of
an approved claim for benefits under this act.
(d) Information sharing.--Information sharing and
integration technology to facilitate the disclosure of relevant
information or records shall be used as practicable subject to
consent and disclosure requirements under State law.
(e) Confidentiality.--Information contained in the files and
records pertaining to an individual filing a claim under this
act are confidential and shall not be open to public inspection
other than to public employees in the performance of their
official duties.
(f) Cooperation among departments.--To properly effectuate
the provisions of this act, all departments and agencies under
the jurisdiction of the Governor shall fully cooperate with the
department and provide assistance and support as needed to
ensure the timely and efficient delivery of benefits under this
act.
Section 302. Powers and duties of department.
(a) Administration of act.--The department shall be
responsible for the administration of this act and the fund.
Administration of the program for purposes of this section and
section 506 shall include acquisition, development and
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operational costs related to information technology,
infrastructure and personnel needed to process claims and issue
benefits under this act.
(b) Powers and duties.--To fulfill its responsibilities
under this act, the department shall have the following powers
and duties:
(1) Calculate and set the amount of benefits payable to
a covered individual as specified in section 305 initially
and on an annual basis thereafter.
(2) Provide information to employees and employers on
the amount to be deducted as employee payroll contributions
as specified in section 306 initially and every year
thereafter.
(3) Develop and prepare the written notices that
employers must distribute and provide to their employees in
accordance with section 501. The form of the notices shall be
posted on the department's publicly accessible Internet
website.
(4) Prepare and provide the medical certification form
referenced in section 303(d) on the department's publicly
accessible Internet website.
(5) Prepare and provide the necessary forms for filing
and acknowledging a benefits claim and for providing notice
of benefits approval to both employers and covered individual
employees.
(6) Evaluate and adjudicate claims.
(7) Evaluate and determine the amount of payroll
contributions and maximum employee contributions to ensure
fund solvency.
(8) Coordinate benefits with employers that have already
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paid for benefits outside of the fund.
(9) Make payments on claims.
(10) Develop the abstract for employer posting of notice
in the workplace under section 501, which shall be available
on the department's publicly accessible Internet website.
(11) Prepare and provide the employee complaint form on
the department's publicly accessible Internet website.
(12) Develop all forms necessary to ensure
implementation of this act.
(13) Develop procedures to investigate and resolve
complaints under this act.
(14) Conduct an ongoing public outreach campaign to
inform employers and employees about the availability of the
program and the process for filing a benefits claim.
(15) Promulgate regulations as necessary to administer
this act.
(16) Issue an annual report under section 507.
(c) Enforcement of act.--The secretary shall establish a
system for an administrative complaint and appeals process in
the case of a denial of family and medical leave benefits,
denial of a waiver under section 310, denial of family and
medical leave benefits provided through a private plan under
section 310 and all violations assessed under this act. The
system for administrative complaints and appeals process shall
be promulgated by the department through regulation. Procedures
to ensure confidentiality of all information related to any
claims filed or appeals taken shall be implemented in accordance
with applicable laws.
Section 303. Eligibility for family and medical leave benefits.
(a) Basis for receipt of benefits.--No later than two years
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following establishment of the program, benefits under this act
shall be payable to a covered individual who files an approved
claim based on any of the following:
(1) Because of birth, adoption or placement through
foster care, is caring for a new child during the first year
after the birth, adoption or placement of that child.
(2) Is caring for a family member with a serious health
condition.
(3) Has a serious health condition, including pregnancy,
that renders the covered individual unable to perform the
functions of the individual's position.
(4) In a declared public health emergency, is caring for
a family member with a serious health condition.
(5) Is caring for a family member who is a covered
service member due to a qualifying exigency leave in
accordance with the terms of 29 U.S.C. Ch. 28 (relating to
family and medical leave).
(6) Is a victim of a qualifying act of violence or is
caring for a family member who is a victim of a qualifying
act of violence and is taking leave for an authorized reason
for leave for a qualifying act of violence.
(b) Employment and income eligibility requirements.--To be
eligible to file a benefits claim, a covered individual must:
(1) Have worked at least 18 weeks during the 12-month
period prior to submitting a claim.
(2) Have earned at least $2,718 in income during the 12-
month period prior to submitting a claim. The earned income
rate in this paragraph shall be adjusted annually by the
department and reflect the minimum qualifying wage to qualify
for benefits under the Unemployment Compensation Law.
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(3) Not be employed by an employer that has been issued
a waiver under section 310.
(c) Proof of wages.--The fund shall not be liable for
payment of benefits unless the amount of wages that the covered
individual earned at the time of their leave is verified by
section 305(a)(2) or under this subsection. If a discrepancy is
identified by the department in verifying wages under section
305(a)(2), the department may request the following documents
from a covered individual to verify their wages:
(1) A check, check stub or payroll record.
(2) A tax return, including IRS form W-2 and form 1099,
or successor forms.
(3) Unemployment compensation records, including form
UC-2A.
(4) Bank statements or records showing regular and
recurring deposits.
(5) Written documentation created contemporaneously with
the payment of wages.
(d) Interaction with the Workers' Compensation Act and the
Unemployment Compensation Law.--To file a benefits claim and
receive benefits under this act, a covered individual may not
receive benefits for the same day under the Workers'
Compensation Act or the Unemployment Compensation Law.
(e) Filing of benefits claim.--An individual seeking
benefits under this act shall submit a claim to the department
providing the required documentation to support a claim for
benefits, including any necessary medical certification or
qualifying act of violence certification.
(f) Medical certification.--
(1) A covered individual shall obtain a medical
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certification confirming a serious health condition under
subsection (a)(2), (3) or (4) that justifies the filing of a
claim and the receipt of benefits under this act and shall
make that information available to the department on the form
prescribed by the department. When possible, the department
shall use Federal family and medical leave forms. Any
completed medical certification form regarding a covered
individual shall be used solely for the purpose of
adjudicating a claim under this act.
(2) Confidential medical documentation may not be
released by the department unless written authorization is
provided by an employee or a covered individual.
(g) Qualifying act of violence certification.--The
department may require that an employee, within a reasonable
period after the absence, provide documentation that the
employee or family member of the employee is a victim of a
qualifying act of violence. The following apply:
(1) The employee may satisfy the certification
requirement by providing to the department any of the
following:
(i) A copy of a valid court order that restrains the
person alleged to have committed the qualifying act of
violence from contact with the employee or family member
of the employee.
(ii) Medical or mental health records indicating
that the employee or family member of the employee is a
victim of a qualifying act of violence.
(iii) A police report documenting the act of which
the employee or family member of the employee is a victim
of a qualifying act of violence.
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(iv) Evidence that the person alleged to have
committed the qualifying act of violence has been charged
with or convicted of an act of which the employee or
family member of the employee is a victim.
(v) A written certification signed by an attesting
third party that affirms that the employee or family
member of the employee is a victim of a qualifying act of
violence.
(vi) Any other form of documentation that reasonably
verifies that the employee or family member of the
employee is a victim of a qualifying act of violence,
including a written statement signed by the employee or
an individual authorized to act on behalf of the
employee.
(2) Furnishing documentation or providing a
certification under this subsection shall not waive any
confidentiality or privilege that may exist between the
employee or victim and a third party.
(3) The department may not require:
(i) That the employee provide a certification that
explains the details of the qualifying act of violence.
(ii) Disclosure of details relating to a qualifying
act of violence or the details of the medical condition
of the employee or family member of the employee as a
condition of providing leave under this act.
(4) All information provided to the department under
this subsection shall be retained in the strictest confidence
by the department, except to the extent that disclosure is:
(i) requested or consented to in writing by the
employee; or
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(ii) otherwise required by applicable Federal or
State law, in which case the department shall provide the
employee notice prior to any authorized disclosure.
(h) Married or domestic partners employed by the same
employer.--Individuals who are legally married or domestic
partners under the laws of any state or political subdivision
and employed by the same employer shall both be eligible for
benefits under this act, even when the leave runs concurrently.
(i) Promulgating regulations.--The department shall
promulgate regulations to provide for an eligibility
adjudication process under this act.
(j) Adjudication of claim.--Upon receipt of all necessary
documentation to support a claim for benefits from a covered
individual, the department shall determine eligibility for
benefits under this act within 20 business days.
Section 304. Duration of benefits.
(a) Maximum leave duration of 20 weeks.--The maximum number
of weeks during which benefits are payable under section 303(a)
(1), (3) or (6) in an application year is 20 weeks.
(b) Maximum leave duration of 12 weeks.--The maximum number
of weeks during which benefits are payable under section 303(a)
(2), (4) or (5) in an application year is 12 weeks.
(c) Total maximum duration.--The duration of leave under
subsections (a) and (b) combined may not exceed a total number
of 20 weeks in any one application year regardless of reason.
(d) Initial payment of benefits.--The first payment of
benefits shall be made to a covered individual no later than one
week:
(1) after the claim is filed and approved by the
department; or
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(2) from the date the leave is scheduled to commence.
(e) Payment of benefits.--After the initial payment of
benefits, subsequent payments shall be made semimonthly
thereafter for the duration of the approved leave.
Section 305. Amount of benefits.
(a) Calculation of benefits.--
(1) The benefits payable to a covered individual shall
be calculated as follows:
(i) the portion of a covered individual's average
weekly wage that is equal to or less than 50% of the
Statewide average weekly wage shall be replaced at a rate
of 90%; and
(ii) the portion of a covered individual's average
weekly wage that exceeds 50% of the Statewide average
weekly wage shall be replaced at a rate of 50%.
(2) The calculation of a covered individual's average
weekly wage in accordance with this subsection shall be as
follows:
(i) If at the time the leave commences the wages are
fixed by the week, the amount so fixed shall be the
average weekly wage.
(ii) If at the time the leave commences the wages
are fixed by the month, the average weekly wage shall be
the monthly wage so fixed multiplied by 12 and divided by
52.
(iii) If at the time the leave commences the wages
are fixed by the year, the average weekly wage shall be
the yearly wage fixed divided by 52.
(iv) If at the time the leave commences the wages
are fixed by any manner not provided in subparagraph (i),
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(ii) or (iii), the average weekly wage shall be
calculated by dividing by 13 the total wages earned in
the employ of the employer in each of the highest three
of the last four consecutive periods of 13 calendar weeks
in the 52 weeks immediately preceding the leave period
and by averaging the total amounts earned during these
three periods.
(v) If the covered employee has not been employed by
the employer for at least three consecutive periods of 13
calendar weeks in the 52 weeks immediately preceding the
leave period, the average weekly wage shall be calculated
by dividing by 13 the total wages earned in the employ of
the employer for any completed period of 13 calendar
weeks immediately preceding the leave period and by
averaging the total amounts earned during such periods.
(vi) If the employee has worked less than a complete
period of 13 calendar weeks and does not have fixed
weekly wages, the average weekly wage shall be the hourly
wage rate multiplied by the number of hours the employee
was expected to work per week under the terms of
employment.
(vii) Except as provided in subparagraph (v) or
(vi), in occupations which are exclusively seasonal and
therefore cannot be carried throughout the year, the
average weekly wage shall be taken to be one-fifteenth of
the total wages which the employee has earned from all
occupations during the 12 calendar months immediately
preceding the leave, unless it be shown that during such
year, by reason of exceptional causes, such method of
calculation does not clearly provide the earnings of the
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employee, in which case the period for calculation shall
be extended so far as to give a basis for the fair
ascertainment of average weekly earnings.
(viii) The terms "average weekly wage" and "total
wages," as used in this paragraph shall include board and
lodging received from the employer and gratuities
reported to the United States Internal Revenue Service by
or for the employee for Federal income tax purposes. The
terms shall not include amounts deducted by the employer
under the contract of hiring for labor furnished or paid
for by the employer and necessary for the performance of
the contract by the employee, nor shall the terms include
deductions from wages due to the employer for rent and
supplies necessary for the employee's use in the
performance of their labor, nor shall the terms include
fringe benefits, including, but not limited to, employer
payments for or contributions to a retirement, pension,
health and welfare, life insurance, Social Security or
any other plan for the benefit of the employee or their
dependents.
(ix) The amount of any bonus, incentive or vacation
payment earned on an annual basis shall be excluded from
the calculations under subparagraphs (i), (ii), (iii),
(iv), (v) and (vi). Such payments, if any, shall instead
be divided by 52 and the amount shall be added to the
average weekly wage otherwise calculated under
subparagraphs (i), (ii), (iii), (iv), (v) and (vi). If
the employee is working under concurrent contracts with
two or more employers, the wages from all employers shall
be considered as if earned from the employer liable for
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compensation.
(b) Limitation.--
(1) In no case shall the weekly benefits payable to a
covered individual be more than the Statewide average weekly
wage.
(2) The application of the Statewide average weekly wage
on a claim shall begin on the date that the birth or a
serious health condition arises.
(3) If a claim carries over from one year into another
and the Statewide average weekly wage is adjusted, the most
recent Statewide average weekly wage shall be used in all
future payments.
(c) Adjustment of benefits calculation.--The department
shall adjust the maximum family and medical leave benefit cap
established in subsection (a) annually based on the Statewide
average weekly wage and shall transmit notice of the revised
family and medical leave benefit rates to the Legislative
Reference Bureau for publication in the Pennsylvania Bulletin on
an annual basis.
(d) Limit on taking of benefits and nonsequential leave.--
Under this section and section 307, benefits are not payable for
less than eight hours of leave taken in one work week.
Section 306. Contributions.
(a) Payment into the program.--All persons employed in this
Commonwealth shall be required to contribute to the program for
the purpose of financing the program.
(b) Commencement of payroll contributions.--Payroll
contributions into the fund for the purpose of financing the
program shall commence at least one year prior to the payment of
benefits from the fund to covered individuals.
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(c) Calculation of payroll contributions.--The amount
payable through employee payroll contributions shall be set at a
percentage of an individual employee's wages to initiate
payments into the program. The following apply:
(1) The payroll contribution shall be calculated using
an actuarial experience study that shall take into account
all applicable available data. The rate shall be set at an
amount to ensure solvency of the fund but shall not exceed 1%
of an individual employee's wages.
(2) When necessary, but at least every year thereafter,
the department shall evaluate and determine the amount of
payroll contributions and maximum employee contribution
necessary to finance and adequately support the program.
(3) The payroll contribution rate shall be posted on the
department's publicly accessible Internet website.
(4) An employer may deduct up to 50% of the contribution
required for an employee by this section from that employee's
wages and shall remit 100% of the contribution required by
this section from both the employer and those employees to
the fund, as follows:
(i) An employer with fewer than 15 employees may
deduct up to 50% of the contribution required for an
employee by this section from that employee's wages and
shall remit 50% of the contribution required by this
section to the fund.
(ii) To determine an employer's number of employees
under this subsection, all of an employer's employees
shall be counted, including full-time, part-time and
temporary in-State employees and all out-of-State
employees.
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(d) Notification to employers.--The department shall notify
the Department of Revenue to advise employers of the amount
payable through employee payroll contributions.
(e) Penalty for failure to withhold.--Except for an employer
issued a waiver under section 310, an employer who fails to
withhold payroll contributions in accordance with this act shall
be subject to those penalties enforceable through the act of
March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of
1971, for failure to properly withhold wages for income tax and
sales and use tax purposes.
Section 307. Reduced leave schedule.
(a) Taking of nonsequential leave.--A covered individual
shall be entitled to utilize the leave authorized under section
304, at the option of the covered individual, to take leave on
an intermittent or reduced leave schedule in which all of the
leave authorized under this act is not taken sequentially.
Family and medical leave benefits for intermittent or reduced
leave schedules shall be prorated.
(b) Impact on duration of leave.--Nonsequential leave taken
under this section may not result in a reduction in the total
amount of family and medical leave to which a covered individual
is entitled beyond the amount of leave actually taken.
(c) Total amount of leave allowed.--Nothing in this section
shall be construed to enable a covered individual to take more
leave than allowed under section 304.
Section 308. Employment protections.
(a) Restoration of employment position.--A covered
individual who takes leave in accordance with this act shall,
upon the expiration of that leave, be restored by the employer
to the position previously held by the covered individual when
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the leave commenced, or to a position with equivalent seniority,
status, employment benefits, pay and other terms and conditions
of employment.
(b) Health care benefits maintained.--For the duration of a
leave approved under this act, the employer shall maintain any
health care benefits the covered individual had prior to taking
leave as if the covered individual had continued in employment
continuously from the date leave commenced until the date the
leave terminates. A covered individual shall continue to pay the
covered individual's share of the cost of health benefits as
required prior to the commencement of the leave.
(c) Interference with benefits.--It shall be unlawful for an
employer or any other person to interfere with, restrain or deny
the exercise of, or the attempt to exercise, any protection
afforded under this act.
(d) Retaliation prohibited.--An employer, temporary help
company, employment agency, employee organization or other
person may not take retaliatory personnel action or otherwise
discriminate against a person because the person took any action
in accordance with this act, including:
(1) Applying for or using benefits or taking leave under
this act.
(2) Communicating to the employer or any other person or
entity an intent to file and act on a claim, a complaint or
an appeal with the department or a court of competent
jurisdiction.
(e) Consideration of absence.--It shall be unlawful for an
employer to count leave taken under this act as an absence that
may lead to or result in a retaliatory personnel action.
(f) Good faith protection.--Protections under this section
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shall apply to any person who mistakenly but in good faith
alleges a violation of this act.
Section 309. Coordination of benefits.
(a) Leave concurrent with Federal law.--Leave taken under
this act that also qualifies as leave under 29 U.S.C. Ch. 28
(relating to family and medical leave) shall run concurrently
with leave taken under 29 U.S.C. Ch. 28.
(b) Coordination with other paid leave.--An employee may
elect to utilize paid leave available under any other Federal or
State law, collective bargaining agreement or employer policy
prior to receiving benefits under this act, provided that it
does not conflict with Federal law. Employers shall provide
employees with written notice of the opportunity to make the
election, and inform employees how leave will be coordinated
absent any election.
(c) Employer's obligation.--This act does not diminish an
employer's obligation to comply with any of the following that
provides more generous leave:
(1) A collective bargaining agreement.
(2) An employer policy.
(3) Any other Federal or State law.
(d) Prohibition on subsequent collective bargaining
agreement or employer policy.--An individual's right to leave
and the payment of benefits under this act may not be diminished
by a collective bargaining agreement entered into or renewed, or
an employer policy adopted or retained, after the effective date
of this subsection. An agreement by an individual to waive the
individual's rights under this act is void as against public
policy.
(e) Impact on Workers' Compensation Act.--Nothing in this
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act shall be construed to impact the provisions of the Workers'
Compensation Act with regard to work-related injuries.
(f) Impact on Public Employe Relations Act.--Nothing in this
act shall be construed to supersede or preempt the rights,
remedies and procedures afforded to employees or labor
organizations under Federal or State law, including the act of
July 23, 1970 (P.L.563, No.195), known as the Public Employe
Relations Act, or any provision of a collective bargaining
agreement negotiated between an employer and an exclusive
representative of the employees in accordance with the Public
Employe Relations Act.
Section 310. Employer waiver to use private plan.
(a) Waiver.--An employer may apply to the department for a
waiver to meet the employer's obligations under this chapter
through a private plan. The application shall be submitted on a
form and in a manner prescribed by the department. The
department may approve a private plan and issue a waiver under
this section if a private plan confers at least all of the same
rights, protections and benefits provided to employees under
this chapter and if the employer provides evidence that it has
in effect a self-funded plan governed under the Employee
Retirement Income Security Act of 1974 (Public Law 93-406, 88
Stat. 829) or an insurance policy issued by an entity that has a
certificate of authority to do the business of insurance as
required by section 208 of the act of May 17, 1921 (P.L.789,
No.285), known as The Insurance Department Act of 1921. The
private plan shall comply with all of the requirements under
this chapter, including the following:
(1) Benefits to a covered individual under section
303(a)(1), (3) and (6) for the maximum number of weeks
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required under section 304(a) in a benefit year.
(2) Benefits to a covered individual under section
303(a)(2), (4) and (5) for the maximum number of weeks
required under section 304(b) in a benefit year.
(3) Covered individuals, in the aggregate, the maximum
number of weeks of benefits in a benefit year as required
under section 304(c).
(4) A weekly wage replacement rate for each week of
benefits of the amount required by section 305(a).
(5) A maximum weekly benefit for each week of benefits
of the amount specified in section 305(b).
(6) Payment of benefits in accordance with section
303(f) and (i).
(7) The allowance of leave and benefits to be taken
intermittently or on a reduced schedule as authorized by
section 307.
(8) For the adjustment of the maximum benefit cap in
accordance with the notice published annually in the
Pennsylvania Bulletin under section 305(c).
(9) That no additional conditions or restrictions on the
use of leave or benefits beyond those explicitly authorized
by this act or regulations promulgated under this act shall
be imposed.
(10) An employee covered under the private plan who is
eligible to receive benefits under this act, with benefits
under the private plan.
(11) That the cost to employees covered by a private
plan shall not be greater than the cost charged to employees
under section 306(c) and posted on the department's publicly
accessible Internet website under section 306(c)(3).
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(12) Coverage consistent with section 303(b)(1) and (2).
(b) Construction.--Nothing in this act shall prohibit an
employer from providing benefits greater than those listed in
subsection (a).
(c) Additional employer duties.--To be eligible for a waiver
under subsection (a), an employer shall meet all of the
following requirements:
(1) If the private plan is in the form of self-funded
coverage, an employer must furnish a bond running to the
Commonwealth, issued by an entity authorized to transact
surety business in this Commonwealth under Article VI(e) of
the act of May 17, 1921 (P.L.682, No.284), known as The
Insurance Company Law of 1921. The form of surety shall be on
a form approved by the Insurance Department and in an amount
required by the department.
(2) The private plan shall provide for all eligible
employees throughout the employee's period of employment.
(3) An employer that provides a private plan under this
section shall provide each employee with a notice of the
availability of the program. The notice shall be provided to
each employee within five days of approval of a waiver, upon
hire and annually thereafter.
(d) Additional documentation to be submitted upon
approval.--Upon approval of an application for an exemption:
(1) The employer shall provide to the department all
reports required by regulations promulgated by the
department.
(2) If an exemption is based on the employer having a
self-funded plan, the employer shall provide satisfactory
evidence of maintenance of the form of surety as required by
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the department under subsection (c)(1).
(e) Termination of waiver.--The department may terminate
approval to use a private plan granted under subsection (a) if
the secretary finds that the terms and conditions have been
violated or that the employer or private plan has failed to
confer any right, protection or benefit afforded to employees
under this chapter. The department shall be required to notify
an employer of a terminated waiver. Causes for termination of a
waiver shall include:
(1) failure to pay benefits;
(2) failure to pay benefits timely and in a manner
consistent with the program;
(3) failure to maintain an adequate security deposit;
(4) misuse of private plan trust funds;
(5) failure to submit any and all reports as required by
regulations promulgated by the department; or
(6) failure to comply with this section or regulations
promulgated by the department.
(f) Appeal.--If the secretary terminates a waiver for a
private plan under subsection (e), the employer shall have the
ability to appeal the decision of the secretary through the
regulatory process established under section 302.
(g) Protections and enforcement.--An employee covered under
a private plan shall retain all employee protections under
section 308 and enforcement procedures and the appeals process
under section 302(c). The following shall apply:
(1) Applicable enforcement procedures and the appeals
process for benefits by an employer-funded plan shall be
subject to an appeal under section 302(c).
(2) Applicable enforcement procedures and the appeals
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process for benefits by an insurance policy shall be subject
to review as outlined in the policy of insurance and
applicable insurance law.
(3) If all appeals under the policy of insurance have
been exhausted, an individual may appeal to the department on
a form and in a manner prescribed by the department.
CHAPTER 5
ADMINISTRATION AND PROCEDURES
Section 501. Notice.
(a) Employer notice to employees.--Except for an employer
that has been issued a waiver under section 310, upon initial
hiring of an employee, and annually thereafter, an employer
shall provide written notice of the requirements of this act
using the notices prepared and posted by the department under
section 302.
(b) Employer acknowledgment of leave request.--Using the
form prepared by the department under section 302, an employer
shall provide written acknowledgment to an employee when the
employee requests leave under this act. The acknowledgment shall
include:
(1) An explanation of the employee's right to benefits
under this act and the terms for its use.
(2) The amount of benefits.
(3) The procedure for filing a benefits claim with the
department.
(4) Provisions on job protection and benefits
continuation under section 308.
(5) The prohibition on employer discrimination and
retaliatory personnel action against a person for requesting,
applying for or using leave as provided in section 308.
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(6) The employee's ability to file a complaint alleging
a violation of this act.
(c) Public display of notice.--Using the abstract for
employer posting available on the department's publicly
accessible Internet website, an employer shall display and
maintain a poster in a conspicuous place accessible to employees
at the employer's place of business that contains the
information required by this section in English and Spanish,
with consideration to the inclusion of other significant
languages spoken in the workplace.
(d) Employee notice to employer.--When the need for leave is
known to the employee at least 30 days in advance, the employee
shall provide written or verbal notice to the employer of the
need and schedule for taking leave at least 30 days prior to
taking leave. The employee shall make a reasonable effort to
schedule leave in a manner that does not unduly disrupt the
operations of the employer. For all other absences, the employee
shall notify the employer as soon as practicable, including if
the need arises immediately before or after the employee has
reported for work.
Section 502. Erroneous payments and disqualification for
benefits.
(a) Employee disqualification.--A covered individual is
disqualified from receiving benefits for one year if the
individual is determined by the department to have willfully
made a false statement or misrepresentation regarding a material
fact, or willfully failed to report a material fact, to obtain
benefits under this act.
(b) Incorrect payment of benefits.--
(1) If benefits under this act are paid erroneously
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without fault or for a claim that is subsequently rejected
after benefits are paid, the department may seek repayment
through a reasonable reduction in any future benefits due the
recipient.
(2) If benefits under this act are paid as a result of
willful misrepresentation by the recipient, the recipient
shall be liable to repay a sum equal to the amount of
benefits derived through that willful misrepresentation and
the recipient shall be further disqualified for benefits as
specified in subsection (a).
(3) If family and medical leave compensation is paid to
a covered employee erroneously or as a result of willful
misrepresentation by the employee, or if a claim for family
and medical leave compensation is rejected after compensation
is paid, the department may seek repayment of benefits from
the employee having received the compensation and may also,
in the case of willful misrepresentation, seek payment of a
penalty in the amount of 50% of the benefits paid as a result
of the misrepresentation. The department may waive, in whole
or in part, the amount of any of the payments if the recovery
would be against equity and good conscience.
(c) Proof of wages.--During the appeals process as
established under section 302(c), a covered employee's proof of
wages may be proven:
(1) as provided under section 303(c);
(2) by testimony of the employer that is presented under
oath at a hearing under section 505; or
(3) by testimony of the covered employee, if found
credible by the judge during a hearing under section 505.
Section 503. Elective coverage.
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(a) Self-employed option.--A self-employed person, including
a sole proprietor, partner or participant in a joint venture,
may elect coverage under this act for an initial period of not
less than three years upon meeting all of the following
requirements:
(1) Filing a notice of election in writing with the
department, effective on the date of filing the notice.
(2) Supplying all income information that the department
deems necessary.
(3) Compliance with all eligibility, employment and
income requirements specified in section 303.
(b) Withdrawal from coverage.--A self-employed person who
has elected coverage may withdraw from coverage within 30 days
after the end of the three-year period of coverage, or at other
times as the department may prescribe. Upon filing written
notice with the department, the self-employed person's
withdrawal from coverage shall take effect no later than 30 days
after filing the notice of withdrawal.
Section 504. Violations.
An employer that violates the requirements of sections 308,
309 or 501 shall be subject to the penalties as specified in 29
U.S.C. § 2617 (relating to enforcement).
Section 505. Judicial review.
Judicial review of any decision regarding the denial of
benefits or an appeal of any violation of this act shall be
permitted in Commonwealth Court, as required under 42 Pa.C.S. §
763 (relating to direct appeals from government agencies), after
a party aggrieved thereby has exhausted all administrative
remedies established by the department.
Section 506. Family and Medical Leave Fund.
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(a) Fund established.--The Family and Medical Leave Fund is
established as a nonlapsing fund in the State Treasury.
(b) Deposit of money.--Money from employee payroll
contributions paid under section 306 and any financial penalties
imposed under this act shall be deposited into the fund and used
by the department for the administration of the program and the
payment of benefits to covered individuals.
(c) Continuing appropriation.--All money deposited in the
fund and all interest accrued is appropriated to the department
on a continuing basis to administer the program and provide
benefits under this act.
(d) Limitations on fund.--
(1) No administrative action shall prevent the deposit
of money into the fund in the fiscal year in which the money
is received.
(2) The fund may only be used for the program authorized
under this act. Money in the fund may not be transferred or
diverted to any other purpose by administrative action.
(e) Other deposits.--The department may deposit into the
fund any other money received for the purposes specified in this
act.
Section 507. Annual report.
(a) Annual report.--
(1) No later than September 1, 2027, and each September
1 thereafter, the department shall submit a report to the
chairperson and minority chairperson of the Labor and
Industry Committee of the Senate and the chairperson and
minority chairperson of the Labor and Industry Committee of
the House of Representatives.
(2) Each report under paragraph (1) shall include:
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(i) Actual program participation by category as
delineated in subparagraph (ii), including total number
of leaves taken.
(ii) Beneficiary gender for leaves taken.
(iii) Types of family members for whom leave was
taken to provide care.
(iv) Payroll contribution rate calculations for the
current and previous calendar year and projected rate
calculations for the next three calendar years.
(v) Projected program participation over the next
three calendar years.
(vi) Account balances.
(vii) The scope and success of outreach efforts.
(viii) Recommendations for improvements to the
program.
(b) Public posting of annual report.--The department shall
make the report available on the department's publicly
accessible Internet website. Monthly data should also be made
available online.
Section 508. Public education.
(a) Outreach campaign.--
(1) The department shall conduct a public education
campaign to inform employees and employers regarding the
availability of family and medical leave benefits under this
act.
(2) The department shall allocate at least $500,000 from
the fund annually to pay for a public education program that
informs employees about benefits and eligibility under this
act.
(3) Outreach information shall be available in English,
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Spanish and other languages as determined by the department.
(b) Community outreach.--The department may utilize outreach
money to identify and assist appropriate community organizations
in educating hard-to-reach populations or industries, including
low-income employees, employees and employers in industries that
do not typically provide paid family leave and employees and
employers whose primary language is not English.
Section 509. Board.
(a) Establishment.--The department shall establish the
Family and Medical Leave Advisory Board to assist in the
implementation of the program and ensure effective public
outreach regarding the availability of benefits under this act.
(b) Composition.--The board shall be composed of the
following:
(1) The secretary or a designee, who shall serve as the
chairperson.
(2) The State Treasurer or a designee.
(3) The Insurance Commissioner or a designee.
(4) The chairperson and minority chairperson of the
Labor and Industry Committee of the Senate or a designee.
(5) The chairperson and minority chairperson of the
Labor and Industry Committee of the House of Representatives
or a designee.
(6) Six members appointed by the secretary representing
an equal number of employers and employees who are residents
of and who work within this Commonwealth.
(c) Terms.--
(1) Members specified under subsection (b)(1), (2), (3)
and (4), (4) AND (5) shall serve for the length of their
tenure in the capacity which enabled them to become members.
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(2) Members specified under subsection (b)(5) (B)(6)
shall serve four-year terms and shall not be eligible to
serve more than two full consecutive terms.
(d) Quorum.--A majority of the members of the board
participating in person or by video conference shall constitute
a quorum.
(e) Meetings.--The board shall meet at the call of the chair
and shall hold meetings at least biannually.
(f) Public access.--The board shall permit the public to
view or listen to a board meeting through contemporaneous
methods and shall make the recordings available on the
department's publicly accessible Internet website.
(g) Expenses.--Members shall not receive compensation but
shall be reimbursed for actual expenses incurred in service of
the board.
Section 510. Regulations.
(a) Duty of department.--In addition to the necessary
regulations under sections 302(c) and 303(i), the department may
promulgate additional regulations as necessary to implement and
administer this act.
(b) Publication.--Proposed regulations shall be submitted to
the Legislative Reference Bureau for publication in the next
available issue of the Pennsylvania Bulletin, as required by the
act of July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law, no later than one year after the
effective date of this section.
Section 511. Right of action.
(a) Civil action by employee.--An action to recover damages
or other appropriate civil or equitable relief for a violation
of section 308, 309 or 501 may be maintained against an employer
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in a court of competent jurisdiction in the Commonwealth by one
or more employees.
(b) Fees and costs.--The court, in an action under this
section, shall, in addition to any judgment awarded to the
plaintiff, allow reasonable attorney fees and other costs of the
action to be paid by the defendant.
(c) Limitations.--An action brought by an employee under
subsection (a) shall terminate on the filing of a complaint by
the secretary in an action under subsection (d).
(d) Civil action by secretary.--The secretary may bring an
action in Commonwealth Court to recover damages and other
appropriate relief.
(e) Money recovered by secretary.--Any money recovered by
the secretary shall be held in a special deposit account and
shall be paid directly to each employee affected within 60 days
of receipt.
CHAPTER 21
MISCELLANEOUS PROVISIONS
Section 2101. Effective date.
This act shall take effect in 180 days.
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