Wage Payment and Collection Law Chapter

Thomas D. Rees, Esquire

High Swartz LLP

40 East Airy Street

Norristown, PA 19404

610-275-0700
610-275-5290 FAX

trees@highswartz.com

I. OVERVIEW

A. The Pennsylvania Wage Payment and Collection Law ("WPCL") provides employees with a vehicle to enforce claims for wages held by employers and required to be paid to the employee, whether by contract or by law. Hartman v. Baker, 766 A.2d 347, 351 (Pa.Super. 2000).

B. The WPCL does not provide an independent substantive right to compensation. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59 (Pa.Super. 2000); Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990). Rather, the WPCL allows employees to enforce the payment of wages and compensation to which an employee is otherwise entitled. Hartman v. Baker, supra.

C. The purpose of the WPCL is to remove some of the obstacles that employees face in litigation by providing statutory remedies when an employer breaches contractual obligations to pay wages. Hartman v. Baker, supra; Kafando v. Erie Ceramic Arts Co., supra.

D. The WPCL allows only the collection of wages already earned (Mavrinac v. Emergency Medicine Ass'n. of Pittsburgh, 2005 WL 2304995 (W.D. Pa. Sep. 21, 2005)). The WPCL does not allow the recovery of future wages. See Walsh v. Alarm Security Group, Inc., 95 Fed. Appx. 399 (3d Cir. Mar. 24, 2004). Future wages include those that are not payable at the time that an employee is separated from the payroll. Kafando v. Erie Ceramic Arts Co., supra. Nor does the WPCL require an employer to let an at-will employee delay his own resignation in order to maximize receipt of wages or commissions. Sendi v. NCR Comten, Inc., 619 F.Supp. 1577 (E.D. Pa. 1985).

E. Since the WPCL relates only to wages already earned, the WPCL allows an at-will employee to recover for wages earned but not paid. The employment-at-will relationship and the employee's rights to receive compensation while employed are separate and distinct. "[An employee's] status as an at-will employee is irrelevant to whether a contract existed to provide compensation during the term of employment." Sullivan v. Chartwell Investment Partners, LP, 873 A.2d 710 (Pa.Super. 2005). However, the terms of compensation or benefits must be specific and known to the employee in order to be enforceable under the WPCL. Harding v. Duquesne Light Company, 882 F.Supp. 422, 478 (W.D. Pa. 1995); Doe v. Kohn, Nast & Graf, 862 F.Supp. 1310, 1325-26 (E.D. Pa. 1994).

F. The employee's rights under the WPCL may be founded on an oral contract to compensate the employee, since an employment contract is not subject to the Pennsylvania Statute of Frauds. See Kotlinski v. Mortgage America, Inc., 40 F.Supp.2d 298 (W.D. Pa. 1998); Scully v. U.S. Wats, Inc., 238 F.3d 497 (3d Cir. 2001).

G. The WPCL does not create an exclusive remedy for collection of wages; an employee may also pursue a common-law contract action. Todora v. Jones and Laughlin Steel Corp., 304 Pa.Super. 213, 450 A.2d 647 (1982); Bauer v. Pottsville Area Emergency Medical Services, 758 A.2d 1265, 1270 n. 2 (2000). A WPCL claim may also be stated as an alternative to a quantum meruit claim. Faden v. deVitry, 425 Pa.Super. 555, 625 A.2d 1236 (1993).

II. DEFINITIONS AND PAYMENT REQUIREMENTS

A. Definitions - 43 P.S. § 260.2a

1. "Employer"

Includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.

a. Certain classes of employer do not lie within the WPCL's definition of "employer." Specifically, municipal employers and school districts are not "employers" under the WPCL, as they are not "persons, firms, partnerships, associations, corporations," etc. See, as to municipalities, Gallaher v. Goldsmith, 213 F.Supp.2d 496 (E.D. Pa. 2002); Huffman v. Borough of Millvale, 139 Pa.Cmwlth. 349, 591 A.2d 1137 (1991); Stump v. Richland Township, 2005 WL 1655879 (E.D. Pa. Jul. 12, 2005); as to school districts, Wagner v. Tuscarora School District, 2005 WL 2319141 (M.D. Pa. Sep. 21, 2005); Chatterjee v. School District of Philadelphia, 170 F.Supp.2d 509 (E.D. Pa. 2001); Philipsburg-Osceola Education Association v. Philipsburg-Osceola Area School District, 159 Pa.Cmwlth. 124, 633 A.2d 220 (1992).

b. The definition of "employer" also includes "an agent or officer" of any employer. This provision allows an employee to sue not only an employer, but also the employer's key employees for violating the WPCL. In order to be held liable as an "employer," the agent or officer of the employer must exercise a policy-making function and/or have an active role in the employer's decision-making process. Tyler v. O'Neill, 994 F.Supp. 603, 616 (E.D. Pa. 1998).

2. "Employee"

The WPCL does not include a definition of "employee," although it is logical to conclude that an employee includes any individual or entity that works for an employer. In order to be covered by the WPCL, the employee must either work in Pennsylvania or be a party subject to a contract governed by Pennsylvania law. See Dean v. Handysoft, Inc., 2005 WL 362662 (E.D. Pa. Feb. 16, 2005); Crites v. Hoogovens Technical Services, Inc., 43 Pa.D.&C.4^th 449 (Alleg. Co. 2000).

a. An individual covered by an independent contractor relationship is not an employee and therefore is not covered by the WPCL. Turk v. Communication Design, Inc., 1991 WL 330882, 10 Pa.D.&C.4^th 42 (1991).

b. A manager of a store, who is free from control in the manner that an independent contractor is free from control, does not qualify as an employee, and therefore may not receive penalties under the WPCL. See Morin v. Brassington, 871 A.2d 844 (Pa.Super. 2005) (denying relief under the WPCL).

c. A corporation or business entity also fails to qualify as an employee and has no rights under the WPCL for payments due under a contract. Little v. U.S.S.C. Group, Inc., 404 F.Supp.2d 849 (E.D. Pa. 2005); Frank Burns, Inc. v. Interdigital Communications Corp., 704 A.2d 678 (Pa.Super. 1997).

3. "Wages"

Includes all earnings of an employee, regardless of whether determined on time, task, piece, commission, or other method of calculation. The term "wages" also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employee's pay by the employer.

a. The definition of "wages earned" includes only claims for payment for or on account of past services. See Part I, supra; see also Stebok v. American General Life Insurance Co., 715 F.Supp. 711 (W.D. Pa. 1989); Swecker v. Rau, 1990 WL 33944 (E.D. Pa. Mar. 22, 1990).

b. The right to receive a wage or wage supplement must be vested under the terms of employment before a WPCL claim arises. Redick v. Kraft, Inc., 745 F.Supp. 296 (E.D. Pa. 1990).

4. "Fringe benefits or wage supplements"

Includes all monetary employer payments to provide benefits under any employee benefit plan, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; as well as separation, vacation, holiday, or guaranteed pay; reimbursement for expenses; union dues withheld from the employee's pay by the employer; and any other amount to be paid pursuant to an agreement to the employee, a third party or fund for the benefit of employees.

B. Payment Requirements - 43 P.S. § 260.3

1. Wages other than fringe benefits and wage supplements

Every employer shall pay all wages, other than fringe benefits and wage supplements, due to his employees on regular paydays designated in advance by the employer. Overtime wages may be considered as wages earned and payable

. . . .

[D]eductions provided by law . . . may be made including deductions of contributions to employee benefit plans, which are subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.

a. At 34 Pa. Code § 9.1, the Pennsylvania Department of Labor and Industry has set forth deductions "authorized by law." These deductions include deductions for social security and taxes, labor organization dues, pension and welfare plan contributions, and deductions authorized by employees in writing that the Department deems proper and in conformity with the WPCL.

b. Unique deductions that do not have the Department's approval are not authorized. See Ressler v. Jones Motor Co., 337 Pa. Super. 602, 487 A.2d 424 (1985) (invalidating deductions on a sliding scale as part of an "earnings participation plan").

c. The employer has the burden of proving that it did not wrongfully withhold payment of wages. See Thomas Jefferson University v. Wapner, 2004 WL 2474098 (Phila. Co.2004).

2. Fringe benefits and wage supplements

Every employer who by agreement deducts union dues from employee's pay or agrees to pay or provide fringe benefits or wage supplements, must remit the deductions or pay or provide the fringe benefits or wage supplements . . . within 10 days after such payments are required to be made to the union in case of dues or to a trust or pooled fund, or within 10 days after such payments are required to be made directly to the employee, or within 60 days of the date when proper claim was filed by the employee in situations where no required time for payment is specified.

C. Notification - 43 P.S. § 260.4

It shall be the duty of every employer to notify his employees at the time of hiring of the time and place of payment and the rate of pay and the amount of any fringe benefits or wage supplements to be paid to the employee . . . and any change with respect to any of these items prior to the time of said change. Alternatively, however, every employer may give such notification by posting the aforementioned facts and keeping them posted conspicuously at the employer's place of business.

D. Separated Employees - 43 P.S. § 260.5(a)

Whenever an employer separates an employee from the payroll, or whenever an employee quits or resigns his employment, the wages or compensation earned shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable.

This provision applies only to past wages earned at the time of termination. Allende v. Winter Fruit Distributors, Inc., 709 F.Supp. 597 (E.D. Pa. 1989). The WPCL does not establish a means to collect lost future earnings for employees who allege wrongful termination. See Barsky v. Beasley Mezzanine Holdings, LLC, 2004 WL 1921156 (E.D. Pa. Aug. 30, 2004).

E. Unconditional Payment of Wages Conceded to be Due - 43 P.S. § 260.6

In case of a dispute over wages, the employer shall give written notice to the employee or his counsel of the amount of wages which the employer concedes to be due and must pay such amount without condition within the time set by the WPCL. Acceptance by the employee of any payment made hereunder does not constitute a release as to the balance of his claim. Council 13, American Federation of State, County and Municipal Employees, AFL-CIO by Keller v. Casey, 141 Pa.Cmwlth. 199, 595 A.2d 670 (1991).

F. Non Waiver - 43 P.S. § 260.7

Nothing contained in this act shall in any way limit or prohibit the payment of wages or compensation at more frequent intervals or in greater amounts or in full when or before due. No provision of this act shall in any way be contravened or set aside by a private agreement.

III. REMEDIES

A. Enforcement - 43 P.S. § 260.8

The Secretary of Labor and Industry shall have the duty, but not the exclusive right, to enforce and administer the provisions of this act, to investigate any alleged violations of this act and to institute prosecutions and actions as provided hereunder . . . . The Department of Labor and Industry shall have the power to make rules and regulations for the administration of this act.

Every employer shall keep open to inspection by the secretary or his authorized representative, all payroll records or other records or documents relative to the enforcement of this act. Such inspection may be made by the secretary or his authorized representative at any reasonable time.

B. Civil Remedies - 43 P.S. § 260.9

1. Private Actions - 43 P.S. § 260.9a(a)(b)

(a) Any employee or group of employees, labor organization or party to whom any type of wages is payable may institute actions provided under this act.

(b) Actions by an employee, labor organization, or party to whom any type of wages and liquidated damages may be maintained in any court of competent jurisdiction . . . .

The court will reduce a damage award that exceeds the amount of wages in arrears. See Riseman v. Advanta Corp., 39 Fed. Appx. 761 (3d Cir. Jul. 8, 2002).

2. Department of Labor and Industry Actions - 43 P.S. § 260.9a(c)

The employee or group of employees, labor organization or party to whom any type of wages is payable may, in the alternative, inform the secretary of the wage claim against an employer or former employer of such claim by certified mail. If the employer or former employer fails to pay the claim or make satisfactory explanation . . . the employer or former employer shall be liable for a penalty of ten percent (10%) of that portion of the claim found to be justly due. A good faith dispute or contest as to the amount of wages due or the good faith assertion of a right of set-off or counterclaim shall be deemed a satisfactory explanation for nonpayment of such amount in dispute or claimed as a set-off or counterclaim.

3. Attorney's Fees - 43 P.S. § 260.9a(f)

The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys' fees of any nature to be paid by the defendant. Costs for other matters are governed by court rule. See, e.g., Regier v. Rhone-Poulenc Rorer, Inc., 1995 WL 395948 (E.D. Pa. 1995).

4. Limitations - 43 P.S. § 260.9a(g)

No administrative proceedings or legal action shall be instituted under the provisions of this act for the collection of unpaid wages or liquidated damages more than three years after the day on which such wages were due and payable as provided in sections 3 and 5.

The limitation period of three years is identical to the limitations period under the Pennsylvania Minimum Wage Act and ERISA. See Harris v. Mercy Health Corp., 2000 WL 1130098 (E.D. Pa. 2000); Wells v. Genesis Health Ventures, Inc., 2005 WL 3150259 (E.D. Pa. 2005); North Star Steel Co. v. Thomas, 515 U.S. 29, 115 S.Ct. 1927 (1995).

C. Liquidated Damages - 43 P.S. § 260.10

Where wages remain unpaid for thirty days beyond the regularly scheduled payday, or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employee of a proper claim or for sixty days beyond the date of the agreement, award or other act making wages payable, or where shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter, and no good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counterclaim exists accounting for such non-payment, the employee shall be entitled to claim, in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater.

Liquidated damages are obtainable unless the employer has a good faith dispute as to the wage claim. See Hartman v. Baker, 766 A.2d 347, 351 (Pa.Super. 2000); Anderson v. Pittsburgh Press Co., 880 F.Supp. 407 (W.D. Pa. 1995); Keegan v. Fahnestock & Co., Inc., 1996 WL 530000 (E.D. Pa. Sep. 16, 1996); Visual Software Solutions, Inc. v. Managed Healthcare Associates, 2001 WL 1159741 (E.D. Pa. 2001).

Liquidated damage payments serve the same purpose as interest in compensating the employee. See Friedrich v. U.S. Computer Systems, Inc., 1995 WL 412385 (E.D. Pa. Jul. 10, 1995).

D. Criminal Liability - 43 P.S. § 260.11a

Violation of the WPCL is a summary offense with a maximum fine of $300 and imprisonment of 90 days. See Commonwealth, Department of Labor and Industry v. Giugliano, 318 Pa.Super. 32, 464 A.2d 503 (1983); Com. v. Bross, 15 Pa.D.&C.3^rd 229 (Bucks Co. 1980).

IV. KEY QUESTIONS

A. What Must an Employee Show in Order to State a Claim Under the WPCL?

An employee must show a contractual entitlement to be paid. Sullivan v. Chartwell Investment Partners LP, 873 A.2d 710 (Pa.Super. 1005); Rade v. Transition Software Corp., 1998 WL 767455 (E.D. Pa. Oct. 30, 1998).

An employee must show the terms of the contract for payment. Mavrinac v. Emergency Medicine Ass'n. of Pittsburgh, 2005 WL 2304995 (W.D. Pa. 2005).

The employee may show either that the employer has not paid wages already earned, or has forced the employee to accept less than the stated wage. See Bandy v. L.G. Industries. Inc., 2003 WL 21499017 (E.D. Pa. June 23, 2003).

B. What Entities Are Exempt From Employer Status?

See Section II(A)(1), supra.

C. Who is an Employee With Rights Under the WPCL?

See Section II(A)(2), supra.

D. What Types of Payments Constitute Wages or Wage Supplements Under the WPCL?

1. Salary or wages. Simms v. Exeter Architectural Products, Inc., 868 F.Supp. 677 (M.D. Pa. 1994); McLaughlin v. Gastrointestinal Specialists, Inc., 696 A.2d 173 (Pa.Super. 1997).

2. Commissions. Sendi v. NCR Comten, Inc., 619 F.Supp. 1577 (E.D. Pa. 1985); Lipson v. Jackson National Life Insurance Co., 2004 WL 163681 (E.D. Pa. Jan. 8, 2004). But see Meyer v. Gwynedd Development Group, Inc., 756 A.2d 67 (Pa.Super. 2000), in which real estate agent was held to have no right to receive commissions for failure to have proper licensure.

3. Bonuses. See, e.g., Department of Transportation v. Pennsylvania Industries for the Blind and Handicapped, 886 A.2d 706 (Pa.Cmwlth. 2005).

4. Accrued vacation pay. Department of Transportation v. Pennsylvania Industries for the Blind and Handicapped, 886 A.2d 706 (Pa.Cmwlth. 2005); Harding v. Duquesne Light Company, 882 F.Supp. 422 (W.D. Pa. 1995).

5. Severance payments. Sullivan v. Chartwell Investment Partners, LP, 873 A.2d 710 (Pa.Super. 2005); Denton v. Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571 (1999); Berger v. Safemasters Co., Inc., 1986 WL 15025 (E.D. Pa. Dec. 30, 1986).

6. Stock ownership. See, e.g., Scully v. U.S. Wats, Inc., 238 F.3d 497 (3d Cir. 2001); Galdieri v. Monsanto Co., 245 F.Supp.2d 636 (E.D. Pa. 2002).

7. An equity interest in the employer. Hartman v. Baker, 766 A.2d 347 (Pa.Super. 2000).

8. Incentive stock options. Keck v. Trifoods International, 1996 WL 665536 (E.D. Pa. Nov. 12, 1996).

9. Phantom stock. Ferarolis v. International Recovery Systems, Inc., 2005 WL 3234488 (E.D. Pa. Nov. 29, 2005).

10. Stock re-purchase rights. Bowers v. NETI Technologies, Inc., 690 F.Supp. 349 (E.D. Pa. 1988).

11. Disability payments. Holland v. Hardee Food Systems, Inc., 853 F.Supp. 848 (E.D. Pa. 1994).

E. What Benefits Do Not Constitute Wages or Wage Supplements Under the WPCL?

1. Payments under a "gain sharing" plan that depended totally on employer's earnings and not on employee's output. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59 (Pa.Super. 2000).

2. Discretionary bonus payments. Smith v. Bell Atlantic Network Services, 1995 WL 389697 (E.D. Pa. June 28, 1995).

F. What Individuals Can be Subjected to Liability?

1. The President and Chairman of an employer whose position naturally calls for an active involvement in the creation of company policy. See Hay Acquisition Co. v. Bhula, 2004 WL 2106548 (E.D. Pa. Sept. 21, 2004).

2. An officer or director of the employer. See Amalgamated Garment and Allied Industries Fund v. Dion, 341 Pa.Super. 12, 491 A.2d 123 (1985) (officers); Bowers v. NETI Technologies, Inc., 690 F.Supp. 349 (E.D. Pa. 1988) (directors).

But see Mohney v. McClure, 390 Pa.Super. 328, 568 A.2d 682 (1990) (non-functioning officer).

3. Any decision maker for the company. Anyone, regardless of rank, who is a decision maker faces the possible prospect of liability. See, e.g., Tyler v. O'Neill, 994 F.Supp. 603 (E.D. Pa. 1998). (bookkeeper liable) Anyone, regardless of rank, who is not a decision maker, will not be held liable. See International Association of Theatrical Stage Employees, Local Union 3 v. Midatlantic Promotions, Inc., 856 A.2d 102 (Pa.Super. 2004).

4. An attorney may be named in a WPCL suit to the extent that the attorney is a policy-making agent of the employer. Blaeuer v. Romy, 2004 WL 594071 (Phila. Co. 2004).

5. A policy maker, even to the extent that the policy maker is not a decision maker. See Local Union No. 98 International Brotherhood of Electrical Workers v. Garney Morris, Inc., 2004 WL 1151722 (E.D. Pa. May 24, 2004).

6. An individual otherwise liable under the WPCL was protected against liability after filing for personal bankruptcy. See Gyde v. Nutri-System, Inc., 1997 WL 186330 (E.D. Pa. 1997).

G. What Offsets (if any) Can be Made Against Wage Payments?

1. The employer has the burden of proof establishing its own good faith as to any offsets. See Thomas Jefferson University v. Wapner, 2004 WL 2474098 (Phila. Co. Oct. 22, 2004).

2. No offsets may be made against an employee's WPCL claim for breach of a no-strike provision in a collective bargaining agreement. See Adam v. Benjamin, 426 Pa.Super. 543, 627 A.2d 1186 (1993).

3. No offset can be made against the amount to which an employee is entitled under the Fair Labor Standards Act. Pennsylvania Department of Labor and Industry v. Remsburg, 50 Pa.D.&C.3^rd 272 (Fulton Co., 1988).

4. Just as the WPCL does not establish a right to compensation, the WPCL does not necessarily override an employer's ability to offset items from an employee's compensation. See Banks Engineering, Inc. v. Polons, 697 A.2d 1020 (Pa.Super. 1997), reversed, 561 Pa. 638, 752 A.2d 883 (2000). In reversing the Superior Court, the Pennsylvania Supreme Court held that there was no presumption in favor of requiring a commissioned salesman to replay excess draws over commission. The Supreme Court did not address the WPCL.

H. What Limitations (if any) Exist on Recovery of Attorneys' Fees?

1. Attorneys' fee recovery is mandatory for a prevailing party. See Oberneder v. Link Computer Corp., 448 Pa. 201, 696 A.2d 148 (1997); Signora v. Liberty Travel, Inc., 886 A.2d 184 (2005). The court has discretion, however, in awarding reasonable attorneys' fees. See Signora, supra; Mantz v. Steven Singer Jewelers, 100 Fed. Appx. 78 (3d Cir. Jun. 3, 2004).

2. Not only a court, but an arbitrator, has the right to award attorneys' fees. See Stone v. Pennsylvania Merchant Group, Ltd., 949 F.Supp. 316 (E.D. Pa. 1996); Terrick v. PNC Bank, 55 Pa.D.&C.4^th 403 (Alleg. Co. 2001).

3. Attorneys' fees may be awarded to a prevailing employee even if the employer has alleged a good faith defense. See Barnhart v. Compugraphic Corp., 936 F.2d 131 (3d Cir. 1991); Tambay v. Peer, 2005 WL 1168367 (E.D. Pa. 2005).

4. In computing attorneys' fees, a court will look at the time charged to the matter and decide whether it is excessive. For a detailed analysis of a fee award, see Clarke v. Whitney, 3 F.Supp.2d 631 (E.D. Pa. 1998); see also Corbett v. National Products Co., 1995 WL 284248 (E.D. Pa. May 9, 1995).

5. Court may award attorneys' fees on the basis of lodestar figure and multiplier. See Ezekian v. Anacomp, Inc., 2003 WL 22518566 (E.D. Pa. Oct. 9, 2003).

6. The size of the award will not necessarily depend on the degree of plaintiff's success. See Bandy v. L.G. Industries, 2003 WL 22100876 (E.D. Pa. June 23, 2003).

I. What Constitutes a "Good Faith Dispute" That Will Limit Recovery of Liquidated Damages?

1. Liquidated damages will not be awarded when there is a good faith defense or contest against a wage claim. In Keegan v. Fahnestock & Co., Inc., 1996 WL 530000, *12 (E.D. Pa. 1996), Judge Hutton held that "any contest or dispute that is based on facts that would lead a reasonable person to find a legitimate dispute as to whether wages were due, constitutes good faith."

2. A "good faith" defense or contest will be found to exist where the employer has a reasonable, albeit incorrect, basis to dispute a wage claim. Hartman v. Baker, 766 A.2d 347, 355 (Pa.Super. 2000). In Hartman v. Baker, the Superior Court analogized between a "good faith dispute" under the WPCL and a good faith or bad faith contest of an insurance claim.

3. The employer has the burden to prove by clear and convincing evidence that its contest was in good faith. Walker v. Washbasket Wash & Dry, 2001 WL 770804 (E.D. Pa. July 5, 2001).

J. What Federal Laws Preempt the WPCL?

1. The Employee Retirement Income Security Act ("ERISA") may preempt a claim under the WPCL in a variety of different ways. Whenever a right to payment arises under a benefit plan, ERISA will preempt a WPCL claim. See McBride v. Hartford Life and Accident Co., 2006 WL 279113 (E.D. Pa. Feb. 3, 2006). This preemption will apply regardless of the type of benefit, and will apply whether the plan is a severance plan or a long-term disability plan. See Young v. Reconstructive Orthopaedic Associates II, PC, 2005 WL 627796 (E.D. Pa. Mar. 16, 2005).

2. ERISA will not preempt any claim for individual severance pay; for severance carried out pursuant to a re-organization; or for deductions for dues, political action committees or industry contributions. See, e.g., Wheaton v. Diversified Energy, LLC, 2005 WL 1388639 (E.D. Pa. 2005); Middleton v. Philadelphia Electric Company, 850 F.Supp. 348 (E.D. Pa. 1994); Laborers Combined Funds of Western Pennsylvania v. Ruscitto, 848 F.Supp. 598 (W.D. Pa. 1994); Connors v. Martinage, 41 Pa.D.&C.3^rd 302 (Cambria Co. 1986).

3. Federal labor law preempts the WPCL to the extent that an interpretation of a collective bargaining agreement is required. See Antol v. Esposto, 100 F.3d 1111 (3d Cir. 1996); Keno v. Station KYW-AM Infinity Broadcasting Corp., 2004 WL 2367824 (E.D. Pa. 2004); Adam v. Benjamin, 426 Pa.Super. 543, 627 A.2d 1186 (1993). However, federal labor law does not preclude an action under the WPCL for damages for failure to pay an arbitration award issued under federal labor law. Brewery and Beer Distributor Driver, etc. Local 830 v. Sonnese, 34 Phila.Co.Rptr. 267, 1997 WL 1433773 (June 5, 1997).

4. The Federal Fair Labor Standards Act does not preclude the recovery of more liberal remedies, e.g., for liquidated damages, under the WPCL. See, e.g., In re Gross, 1989 WL 32083 (Bankr. E.D. Pa. Apr. 4, 1989).

K. What Law Will Courts Impose When the Employee or Employer Lie in Separate States?

1. In order to be covered by the Pennsylvania WPCL, an employee must work in Pennsylvania or be "based" in Pennsylvania. See Hides v. CertainTeed Corp., 1995 WL 458786 (E.D. Pa. Jul. 26, 1995); Killian v. McCullough, 873 F.Supp. 938 (E.D. Pa. 1995).

2. Alternatively, a valid choice of law clause may require the application of Pennsylvania law even if an employee works outside Pennsylvania. See Crites v. Hoogovens Technical Services, Inc., 43 Pa.D.&C.4^th 449 (Alleg. Co. 2000).

3. Absent a choice of law clause, the law of the State where the employee works will apply. See Tucci v. C.P. Kelco, 2002 WL 31261054 (E.D. Pa. Oct. 10, 2002).

L. May an Employee Who is Discharged After Asserting Rights to Wages That Raise Issues Under the WPCL Make a Claim for Wrongful Discharge?

There is a division of authority on this point, as follows:

1. For cases that support an employee's claim, see Signora v. Liberty Travel, Inc., 886 A.2d 284 (Pa.Super. 2005) and Fialla-Bertani v. Penny Saver Publications of Pennsylvania, Inc., 2000 WL 1060662, 45 Pa.D&C.4^th 122 (Alleg. Co. 2000).

2. For cases holding that an employee has no wrongful discharge claim, see Janis v. La-Z-Boy Furniture Galleries, 2006 WL 724157 (E.D. Pa. March 17, 2006); Greto v. Radix Systems, 1994 WL 719646 (E.D. Pa. 1994); and Booth v. McDonnell Douglas Trucking Services, 401 Pa.Super. 234, 585 A.2d 24 (1991).