IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS BANKS :

 :

Plaintiff, : Case No. 4:14-cv-02483

 :

v. :

 :

MANPOWERGROUP, INC. : (Judge Brann)

d/b/a EXPERIS US, INC. :

 :

Defendant. :

MEMORANDUM

July 10, 2015

Currently pending before the Court is Defendant ManpowerGroup, Inc. d/b/a 

Experis US, Inc.’s (“Experis”) Motion to Dismiss Count III of the Amended 

Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 

(ECF No. 14). This Court retains supplemental jurisdiction over the state law 

claims under 28 U.S.C. § 1367(a). Consequently, Pennsylvania substantive law 

applies to those claims. E.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 

715, 726 (1966). Briefing has concluded and, for the reasons discussed below, 

Experis’ Motion is denied.

I. BACKGROUND

On December 30, 2014, Plaintiff Thomas Banks filed a Complaint against 

Experis. (ECF No. 1). On February 5, 2015, Mr. Banks amended his Complaint, 

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alleging violations of Section 16(b) of the Fair Labor Standards Act of 1938 

(“FLSA”), 29 U.S.C. §216(b); the Pennsylvania Minimum Wage Act (“PMWA”) 

43 P.S. §§ 333.101-333.115; and the Pennsylvania Wage Payment and Collection 

Law, (“WPCL”) 43 P.S. §§ 260.1-260.45. (ECF No. 12). 

Mr. Banks is an employee of Experis, and alleges that on numerous 

occasions during his employment he worked in excess of forty hours per week 

without receiving overtime pay as required by the FLSA, PMWA, and his contract 

of employment.1 Id. Mr. Banks alleges that he resides in Pennsylvania and 

telecommuted to work fulltime from his home in Pennsylvania. Id. at ¶¶ 2, 7. 

When Experis hired Mr. Banks, the parties executed a contractual 

Employment Agreement (the “Agreement”); the Agreement incorporates by 

reference an Assignment Confirmation.

2

 Id. at ¶ 8; Ex. 1, 2. The Assignment 

Confirmation states that Mr. Banks “shall be paid $55.00 per hour, subject to 

applicable withholdings . . . [and] [o]vertime will be paid if required in accordance 

with applicable state or federal laws.” Id. The Agreement further provides a 

choice of law provision – this provision provides that the “Agreement shall be 

subject to and governed by the laws of the State of Wisconsin irrespective of the 

 

1

This alleged contractual violation implicates the WPCL. (ECF No. 12).

2 Because the Amended Complaint includes the Agreement as an attachment, the Court may 

consider the Agreement in reaching a determination. E.g., U.S. Express Lines Ltd. v. Higgins, 

281 F.3d 383, 388 (3d Cir. 2002).

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choice of law rules in the state of execution of this Agreement or performance of 

employment.” (ECF No. 15, Ex. A, ¶ 17). 

II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff. Hishon v. King 

& Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d 

Cir. 1993). However, “the tenet that a court must accept as true all of the [factual] 

allegations contained in the complaint is inapplicable to legal conclusions.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, the plaintiff has not pled enough facts to 

state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 561 (2007). “Determining whether a complaint states a plausible 

claim for relief will . . . be a context-specific task that requires the reviewing court 

to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-64. 

A court may dismiss a claim under Rule 12(b)(6) where there is a “dispositive 

issue of law.” Neitzke v. Williams, 490 U.S. 319, 326 (1989). 

III. DISCUSSION

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Experis moves to dismiss Count III of the Amended Complaint which seeks 

compensation under the WPCL. Experis does not dispute that Mr. Banks has pled 

sufficient facts to state a claim under the WPCL.

3

(ECF No. 15). Experis instead

argues that a choice of law provision removes any claims from the ambit of the 

WPCL. Id. This presents the Court with the novel question of whether the choice 

of law provision may circumvent the WPCL, or whether, as applied to the WPCL,

the provision is invalid.

Any analysis of the validity of a choice of law clause must begin with the 

presumption that such a contractual provision is enforceable. E.g., McIlvaine 

Trucking, Inc. v. W.C.A.B. (States), 570 Pa. 662, 672 (2002). Thus, “when the 

parties have freely agreed that litigation shall be conducted in another forum and 

where such agreement is not unreasonable at the time of litigation[,]” a choice of 

law clause generally should be enforced. Cent. Contracting Co. v. C.E. Youngdahl 

& Co., 418 Pa. 122, 133 (1965). 

Although “courts do not lightly override private contractual undertakings[,]”

the Supreme Court of Pennsylvania has repeatedly declared that choice of law

“agreements may be avoided where . . . their terms offend public policy as 

reflected, inter alia, in express legislative provisions[.]” McIlvaine, 570 Pa. at 672

 

3

In that regard, it is clear that Mr. Banks has pled sufficient facts to show that he is an employee 

as defined by the WPCL. See, 43 P.S. § 260.2a. Furthermore, the WPCL applies to any person 

or entity “employing any person” within Pennsylvania, and therefore Experis qualifies as an 

employer. Id. Thus, in the absence of a valid choice of law provision, the WPCL applies.

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(citing McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 315-16 

(2000); Bell v. McAnulty, 349 Pa. 384, 386 (1944)). See also, Warner Co. v. 

Unemployment Comp. Bd. of Review, 396 Pa. 545, 554 (1959) (“Where a statute 

of the Commonwealth expresses a public policy designed to alleviate a condition 

of possible distress among the public or a segment thereof and explicitly proscribes 

waiver of the benefits of the act, no private agreement, however valid between the 

parties, can operate as such a waiver”) (emphasis in original).

Thus, the Court must examine the legislative intent in passing the WPCL

and the plain language employed in that statute. The WPCL was “promulgated to 

afford additional means to ‘an employee, labor organization, or party to whom any 

type of wages is payable to recover unpaid wages and liquidated damages.’” 

Laborers Combined Funds of W. Pa. v. Mattei, 359 Pa. Super. 399, 402 (1986). 

Employers are required to “pay all wages . . . due to his employees on regular 

paydays designated in advance by the employer[,]” including overtime wages. 43 

P.S. § 260.3. Importantly, the WPCL provides that “[n]o provision of this act shall 

in any way be contravened or set aside by a private agreement.” Id. at § 260.7.

The Pennsylvania legislature’s intent and purpose in passing the WPCL was, 

inter alia, “to provide an employee with a statutory remedy for an employer's 

breach of its contractual obligation to remit wages.” Mattei, 359 Pa. Super. at 403

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(citing Sendi v. NCR Comten, Inc., 619 F.Supp. 1577, 1579 (E.D. Pa. 1985))

(emphasis in original). Moreover, Pennsylvania courts have concluded that:

[t]he policy of the statute is to aid an employe[e] in the prompt 

collection of compensation due him and to discourage an employer 

from using a position of economic superiority as a lever to dissuade an 

employe[e] from promptly collecting his agreed compensation. 

Ressler v. Jones Motor Co., 337 Pa. Super. 602, 610-11 (1985) (quoting Weingrad 

v. Fischer & Porter Co., 47 D. & C.2d 244 (C.C.P. Bucks Cnty. 1968)). 

The legislature plainly evidenced a prohibition on individuals or entities

contracting around the WPCL when it declared that “[n]o provision of this act shall 

in any way be contravened or set aside by a private agreement.” 43 P.S. § 260.7. 

The legislature understood that, absent such language, employers would use their 

position of economic superiority to coerce employees into waiving their rights to 

receive the benefit of protections provided under Pennsylvania law. 

In sum, the Pennsylvania legislature has enunciated a clear public policy 

“designed to alleviate a condition of possible distress” among workers, and has

“explicitly proscribe[d] waiver of the benefits of the” WPCL. Warner Co, 396 Pa. 

at 554. This Court therefore concludes any choice of law clause intended to 

contractually waive the protections of the WPCL is prohibited.

4 Consequently, the 

WPCL applies, and Experis’ Motion is denied.

 

4

Experis’ reliance on Tucci v. CP Kelco ApS is misplaced. No. CIV.A. 02-1765, 2002 WL 

31261054 (E.D. Pa. Oct. 10, 2002). In Tucci, the court dismissed a WPCL claim because: (1) 

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IV. CONCLUSION

A review of the relevant statute and case law reveals that the choice of law 

provision agreed to by the parties does not prohibit Mr. Banks from pursuing relief 

under the WPCL. Therefore, Experis’ Motion to Dismiss Count III of the 

Amended Complaint is denied.

An appropriate Order will follow.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

 

the defendant was located in Delaware; (2) the plaintiff primarily worked in Delaware and only 

rarely worked from his home in Pennsylvania; and (3) the parties executed a Delaware choice of 

law provision. Id. at *5. However, the Court emphasized that the plaintiff had failed to establish 

that his employment was based in Pennsylvania. Id. In contrast, here Mr. Banks lives in 

Pennsylvania, works fulltime from his home in Pennsylvania via telecommuting, and pays 

Pennsylvania taxes. Thus, these facts are highly distinguishable from those presented in Tucci. 

Mr. Banks’ employment is based in Pennsylvania, and the WPCL applies here.

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