CHAPTER 231. MINIMUM WAGE GENERAL PROVISIONS …

Ch. 231

MINIMUM WAGE

34

CHAPTER 231. MINIMUM WAGE

Sec. 231.1. 231.11. 231.12.

Definitions. Scope. Penalty.

GENERAL PROVISIONS

MINIMUM WAGE

231.21. Rule. 231.22. Deductions and allowances. 231.23. Commission.

EMPLOYER RECORDS

231.31. 231.32. 231.33. 231.34. 231.35. 231.36. 231.37.

Contents of record. Exception. Students. Tipped employees. Inspection. Statement to employee. Posting.

231.41. Rate. 231.42. Workweek. 231.43. Regular rate.

OVERTIME PAY

EMPLOYMENT OF LEARNERS

231.51. 231.52. 231.53. 231.54.

Procedure. Special certificate. Posting of special certificate. Denial of an application for a special certificate.

EMPLOYMENT OF STUDENTS

231.61. Procedure. 231.62. Denial of application for special certificate.

EMPLOYMENT OF WORKERS WITH A DISABILITY

231.71. 231.72. 231.73. 231.74. 231.75. 231.76.

Procedure. Conditions for granting certificate. Special certificate. Specifications of the certificate. Renewal of certificate. Denial of application for special certificate.

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SPECIAL DEFINITIONS

231.81. Definitions. 231.82. Executive. 231.83. Administrative. 231.84. Professional. 231.85. Outside salesman. 231.91--231.99. [Reserved].

MINIMUM WAGE INCREASE AND TRAINING WAGE

231.101. [Reserved]. 231.101a. Minimum wage increase. 231.102. Small businesses. 231.103. Training wage.

TIPPED EMPLOYEES

231.111. Tip credit for non-tipped duties. 231.112. Tip pooling. 231.113. Credit card and other processing fees. 231.114. Service charges.

Authority The provisions of this Chapter 231 issued under The Minimum Wage Act of 1968 (43 P.S. ?? 333.101--333.115), unless otherwise noted.

Source The provisions of this Chapter 231 adopted March 18, 1977, effective March 19, 1977, 7 Pa.B. 750, unless otherwise noted.

GENERAL PROVISIONS

? 231.1. Definitions.

(a) Terms used in this chapter shall have the same meaning and be defined in the same manner as in the act.

(b) In addition to the provisions of subsection (a), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

Act--The Minimum Wage Act of 1968 (43 P. S. ?? 333.101--333.115). Board--Food furnished on an established schedule. Bona fide training program--One which must involve either formal instruction or on-the-job training during a period when the learner is entrusted with limited responsibility and is under supervision or guidance. Bureau--The Bureau of Labor Law Compliance of the Department. Customarily and regularly--A frequency which must be greater than occasional, but which may be less than constant. Department--The Department of Labor and Industry of the Commonwealth. Domestic services--Work in or about a private dwelling for an employer in the capacity as a householder, as distinguished from work in or about a private

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Ch. 231

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dwelling for such employer in the employer's pursuit of a trade, occupation, profession, enterprise or vocation.

Hotel or motel--An establishment which as a whole or part of its business activities offers lodging accommodations for hire to the public, and services in connection therewith or incidental thereto.

Hours worked--The term includes time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work; provided, however, that time allowed for meals shall be excluded unless the employee is required or permitted to work during that time, and provided further, that time spent on the premises of the employer for the convenience of the employee shall be excluded.

Labor on a farm--Labor on a farm shall include the following:

(i) The term farm includes stock, dairy, poultry, fur-bearing animal, fruit and truck farms, plantations, orchards, nurseries, greenhouses or other similar structures used primarily in the raising of agricultural or horticultural commodities.

(ii) The term labor on a farm includes the employment of a person on a farm in connection with one of the following:

(A) Cultivating the soil. (B) Raising or harvesting an agricultural or horticultural commodity, including the raising or hatching of poultry and the raising, shearing, feeding, caring for, training and management of livestock, bees, fur-bearing animals and wildlife. (C) Harvesting of maple sap. (D) The operation, management, conservation, improvement or maintenance of a farm and its tools and equipment. (E) The operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for removing, supplying and storing water for farming purposes. Learner--A person who is participating in a bona fide training program for an occupation in which that person is employed, the required training period for which is recognized to be at least 2 weeks; provided however, that no person may be deemed a learner at an establishment in an occupation for which that person has completed the required training, and in no case may a person be deemed a learner in such an occupation at an establishment after 8 weeks of training, except that a person may be deemed a learner for a longer period if the Secretary finds after investigation that for the particular occupation a minimum of proficiency cannot be acquired in 8 weeks.

Lodging--A housing facility available for the personal use of the employee at all hours.

Minimum Wage Advisory Board--A Board created in the Department of Labor and Industry under section 6 of the act (43 P.S. ? 333.106) regarding the Minimum Wage Advisory Board.

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Nonprofit organization--A corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.

Public amusement or recreational establishment--An establishment providing amusement, entertainment or recreation as its primary service to the public. The term also includes owners, lessees and concessionaires whose business is incidental to, connected to or a part of the business of the establishment. Amusement or recreational establishments shall be deemed public for the purpose of the act except for those that require as a condition for the use of the establishment one of the following:

(i) Individual membership. (ii) Satisfaction of criteria fixed by the establishment other than the payment of a nominal fee. Residential employee--An employee who resides and works on the premises of the employer.

Secretary--The Secretary of Labor and Industry of the Commonwealth. The term Secretary includes the authorized representative of the Secretary.

Service charge--A mandatory fee an employer may charge to a patron for services that an employee renders.

Student--An individual who is enrolled in and regularly attends, on a fulltime basis during the daytime, an institution of learning offering a course of instruction leading to a degree, certificate or diploma, or who is completing residence requirements for a degree. A person is deemed to be a student during the time that school is not in session if that person was a student during the preceding semester, trisemester or similar term of instruction; provided however, that no person may be deemed a student for a period after the date of receipt of a degree, certificate or diploma.

Taxicab driver--An individual employed to drive an automobile equipped to carry no more than seven passengers which is used in the business of carrying or transporting passengers for hire on a zone or meter fare basis and which is not operated over fixed routes, between fixed terminals or under contract.

Tip credit--The difference between the statutory minimum wage outlined in section 4 of the act (43 P.S. ? 333.104) and the hourly wage paid to tipped employees.

Tipped employee--An employee engaged in an operation in which the employee customarily and regularly receives more than $135 a month in tips.

Tips--Voluntary monetary contributions received by an employee from a guest, patron, or customer for services rendered.

USDOL--The United States Department of Labor.

Week--A period of 7 consecutive days starting on any day selected by the employer.

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Worker with a disability--An individual whose earning capacity for the work to be performed is impaired by physical or mental deficiency or injury.

Authority The provisions of this ? 231.1 amended under sections 4(c), 5(a)(5) and 9 of The Minimum Wage Act of 1968 (43 P.S. ?? 333.104(c), 333.105(a)(5) and 333.109).

Source The provisions of this ? 231.1 amended May 4, 1979, effective May 5, 1979, 9 Pa.B. 1467; corrected March 3, 1995, effective March 5, 1994, 25 Pa.B. 765; amended October 2, 2020, effective October 3, 2020, 50 Pa.B. 5459; amended May 6, 2022, effective in 90 days, 52 Pa.B. 2701. Immediately preceding text appears at serial pages (402594) to (402596) and (368151).

Notes of Decisions

Domestic Services Exemption The minimum wage and overtime pay exemption in The Minimum Wage Act of 1968 (43 P. S.

?? 333.101--333.115) (MWA) applies only to domestic services provided by employees of a householder employer and is not preempted by the Fair Labor Standards Act of 1938 (29 U.S.C.A. ?? 201--219) which exempts employees of third party employers. The regulatory definition tracks the MWA's meaning and does not violate legislative intent. Bayada Nurses v. Commonwealth, Dep't of Labor, 958 A.2d 1050 (Pa. Cmwlth. 2008).

Overtime Determinations of what constitutes overtime must be decided under a collective bargaining agree-

ment and not on the regulation alone. Pennsylvania Federation of BMWE v. National RR Passenger Corp., 989 F.2d 112 (3rd Cir. Pa. 1993), cert. denied 114 S. Ct. 85 (U. S. 1993).

Cross References This section cited in ? 231.114 (relating to service charges).

? 231.11. Scope.

This chapter applies to employees and classes of employment not excluded, excepted or exempted from application of the act under section 3, 4 or 5 of the act (43 P. S. ?? 333.103--333.105).

? 231.12. Penalty.

An employer or his agent or the officer or agent of a corporation who violates this chapter or who interferes with the Secretary in the enforcement of this chapter shall, upon conviction, be punished in accordance with section 12(c) of the act (43 P. S. ? 333.112(c)).

THE MINIMUM WAGE

? 231.21. Rule.

(a) Every employee shall pay the minimum wage rate specified in section 4(a) of the act (43 P. S. ? 333.104(a)) subject to exclusions and exemptions as provided in the act and in this chapter.

(b) The minimum wage shall be paid for hours worked, regardless of the frequency of payment and regardless of whether the wage is paid on an hourly, salaried, or commissioned, piece rate, or any other basis. Where an employee works off the premises of the employer under circumstances which prevent adequate supervision by the employer, or in the case of a residential employee, the Secretary will approve any reasonable agreement between the employer and employee for determining hours worked.

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