According to an attorney for a national nutrition store chain, the Pennsylvania General Assembly intended to adopt the federal standards for calculating overtime for all workers in the Keystone State, including salaried employees who work a fluctuating work week.

But during the oral argument session Wednesday before the state Supreme Court in Chevalier v. General Nutrition Centers, the justices were more concerned with what the state Department of Labor and Industry said about the issue. And the problem is, it never addressed it.

The case stems from a dispute over whether Pennsylvania's Minimum Wage Act allows an employer to pay a salaried employee half of their regular rate for every hour worked over 40 in a given week, rather than one-and-a-half times their regular salary for each overtime hour. Part of that debate centers on how a company calculates the “regular rate” for salaried employees. One way of doing that is dividing a worker's weekly salary by 40 hours to determine each employee's “regular rate.” The other way is to divide a salary by the total number of hours he or she worked each week.

However, the section of the PMWA at issue does not define the “regular rate” used to calculate overtime, and instead authorizes the secretary of the Department of Labor and Industry to “promulgate” regulations that could define the term. The secretary has not provided those definitions, and also did not give the courts an opinion about when it would address the issue.

Attorney Robert Pritchard of Littler Mendelson, who is representing General Nutrition Centers, told the justices Wednesday that overtime for its workers was properly calculated under both the Fair Labor Standards Act and the PMWA, and he pointed to the fact that the Department of Labor and Industry did not provide the courts with an opinion as an indication that the practice was proper.

But Justice Christine Donohue was quick to question that assertion when there was no clear language from state regulators.

“How can we interpret a statute when it specifically authorizes the Department of Labor to make that decision?” Donohue said. “This is the ultimate determination of public policy.”

Pritchard contended that the Department of Labor and Industry has adopted language from the FLSA, which, he argued, clearly showed an intent to adopt FLSA standards for calculating overtime for all employees.

Donohue, however, continued to question Pritchard on the absence, saying later in the argument, “It's not our function to interpret the intent of an agency that doesn't act. It's our function to interpret the statute.”

Focusing on the intent of the law, Justice Max Baer said his understanding of the purpose of the PMWA was to protect workers who make low wages. The justice then questioned whether adopting GNC's method of calculating overtime would incentivize companies to make salaried employees work long overtime, since the more hours they work, the less pay they will need to pay. And that result, Baer suggested, could go against the purpose of the act.

Pritchard, however, contended that there are some benefits to being a salaried worker, since they receive the same amount regardless of the hours worked, and contended that the federal method treats all employees the same. But, ultimately, he said, those considerations are better suited for the legislature.

“This is not a decision to be had in this court,” Pritchard said.

“Well, you can always withdraw your appeal,” Baer said.

Roe & Simon attorney Michael Simon, who is representing the plaintiffs, countered that the General Assembly adopted some, but not all of the FLSA, and adopting GNC's approach would render those distinctions meaningless.

“In this case, the exception will swallow the rule,” Simon said.