Pa.’s Minimum Wage Act updates approved by IRRC

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HARRISBURG—The Independent Regulatory Review Commission has ​unanimously approved the final-form regulations to update Pennsylvania’s Minimum Wage Act by changing rules about how employers pay tipped workers and ensure that salaried employees with fluctuating schedules are appropriately compensated for overtime.

The regulations will now be submitted to the Office of Attorney General. Upon OAG approval, the regulations will be published in the Pennsylvania Bulletin and will become effective 90 days after.

“The world of work has changed significantly since these regulations first went into effect in 1977, but tipped workers remain a sizeable and critical segment of Pennsylvania’s workforce. They are the only workers whose take-home pay ultimately depends on the generosity of their customers and not the obligation of their employer. This update to the Minimum Wage Act regulations aims to protect tipped workers in the 21st century and ensure consistency for employers,” Pennsylvania Department of Labor & Industry Secretary Jennifer Berrier said. 

The final-form regulation covers five primary areas for tipped workers, including: 

An update to the definition of “tipped employee,” adjusted for inflation since 1977, that increases the amount in tips an employee must receive monthly from $30 to $135 before an employer can reduce an employee’s hourly pay from $7.25 per hour to as low as $2.83 per hour.

Alignment with a recent federal regulatory update governing employer tip credits to allow employers to take a tip credit under certain conditions, including that the employee spends at least 80 percent of their time on duties that directly generate tips, commonly known as the 80/20 rule.

Alignment with a recent federal regulatory update to allow for tip pooling among employees but in most cases excluding managers, supervisors, and business owners.

A prohibition on employers deducting credit card and other non-cash payment processing transaction fees from an employee’s tip left with a credit card or other non-cash method of payment.

A requirement for employers to clarify that automatic service charges are not gratuities for tipped employees. 

This final-form regulation also updates the definition of “regular rate” for salaried employees whose overtime pay is determined by the fluctuating workweek method, clarifying that for the purpose of calculating overtime the regular rate is based on a 40-hour work week.  

This regulatory proposal is part of Governor Wolf’s broader worker protection agenda and the administration’s commitment to fighting for workers to have fair wages, paid sick leave, safe workplaces and quality jobs. The governor signed an executive order in October 2021 on behalf of Pennsylvania workers and has repeatedly called on the General Assembly to finally pass legislation that supports workers. 

Governor Wolf has called on the General Assembly to pass S.B. 12, sponsored by Sen. Tina Tartaglione, or H.B. 345, sponsored by Rep. Patty Kim, to raise Pennsylvania’s minimum wage to $12 an hour with a path to $15 and remove local pre-emption. The governor also supports the elimination of the $2.83 an hour minimum wage for tipped workers and establishment of one fair wage for all Pennsylvania workers.