UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-3286 _____________ STEPHANIE HIGGINS, for herself and all others similarly situated; SHERRI KRAMER; MEGHAN TANEYHILL; YVETTE MARSHALL; MARGARET MAGEE; SHELLY NEAL; SHEILA LEVESQUE, Appellants

v.

BAYADA HOME HEALTH CARE INC. _______________

On Appeal from the United States District Court For the Middle District of Pennsylvania (D.C. No. 3-16-cv-02382) District Judge: Honorable Jennifer P. Wilson _______________

Argued November 9, 2022

Before: CHAGARES, Chief Judge, JORDAN, and SCIRICA, Circuit Judges (Filed March 15, 2023) _______________ Teresa M. Becvar [ARGUED] Haley R. Jenkins Ryan F. Stephan James B. Zouras Stephan Zouras 100 North Riverside Plaza Suite 2150 Chicago, IL 60606 David J. Cohen 604 Spruce Street Philadelphia, PA 19106 Counsel for Appellants Thomas G. Collins [ARGUED] Cheri A. Sparacino Buchanan Ingersoll & Rooney 409 N. Second Street Suite 500 Harrisburg, PA 17101 Gretchen W. Root Buchanan Ingersoll & Rooney 501 Grant Street Suite 200 Pittsburgh, PA 15219 Counsel for Appellee _______________

OPINION OF THE COURT

2 _______________ JORDAN, Circuit Judge.

Stephanie Higgins and her co-plaintiffs, the appellants before us now, filed a collective action and putative class action alleging that their employer, Bayada Home Care, Inc., made improper deductions from their accumulated paid time off (which, with apologies for the several acronyms we are about to use, we join the parties in calling “PTO”). The plaintiffs argue that the deductions were effectively reductions in their salary and thus made in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and state employment laws, including, as relevant to Higgins, the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101, et seq. Their primary contention is that PTO qualifies as salary under the FLSA and its related regulations, and that, by deducting from their PTO, Bayada made deductions from their salary, which is something the FLSA and regulations forbid. The District Court saw a meaningful distinction between PTO and salary and so granted partial summary judgment for Bayada. The Court then certified its decision for immediate appeal.

Whether PTO is part of an employee’s salary for the purposes of the FLSA is an issue of first impression for us. We hold, based on the plain meaning of the regulatory language promulgated under the FLSA, that PTO is not part of an employee’s salary. In short, we will affirm.

3 I. BACKGROUND1

Higgins is a registered nurse who formerly worked for Bayada, a company providing medical and related support services for patients in their homes. 2 During her employment with Bayada, which lasted from September 2012 to September 2016, Higgins, like her co-plaintiffs and all full-time salaried employees,3 was required to meet a weekly “productivity minimum.”

Bayada health care employees, sometimes called “Clinicians,”4 are paid a salary but, to meet their productivity minimums, must accumulate a specified number of “productivity points” a week – each point being roughly

1 On review of the summary judgment ruling, we review the facts in the light most favorable to the nonmovants, the plaintiffs-appellants. Andrews v. Scuilli, 853 F.3d 690, 696 (3d Cir. 2017). 2 Bayada is headquartered in New Jersey, employs approximately 28,000 employees, and provides home health care services to patients in 23 states. 3 The ot