A nursing home failed to properly compensate employees for travel expenses and non-work time spent receiving treatment pursuant to the Occupational Safety and Health Administration’s Bloodborne Pathogens Standard, the Third Circuit decides.

The OSHA rule requires employers to make treatment available “at no cost to employees” for occupational exposure to bloodborne pathogens. Two nursing home employees had incurred “needlestick” injuries while at work, and each sought treatment at the end of his or her respective shift at a designated off-site medical facility, and returned to the off-site facility for periodic follow-up treatment during non-work hours. The nursing home paid for the cost of the medical evaluations and procedures, but did not reimburse the employees for the non-work hours they spent receiving either the initial or follow-up treatments. The company also did not compensate the employees for travel time or expenses related to the treatments.

The Dept. of Labor interprets the “no cost” rule to include compensation for non-work time and travel expenses, and the Court holds that this is a reasonable interpretation.

The nursing home argued that it did not have “fair notice” of the OSHA rule interpretation since it appeared to contradict an earlier Fair Labor Standards Act opinion letter which stated that “[i]n order for time spent waiting for or receiving medical attention or treatment to be compensable, the visit to the doctor must be at the direction of the employer and it must occur during the employee’s normal work hours on days when the employee is working.” The Court points out that the FLSA opinion letter did not address compensation for travel expenses, was issued by a different agency, and concerned a different regulation promulgated under a different statute. The Court also notes that a later OSHA opinion letter should have provided the company with fair notice about its interpretation. Secretary of Labor v. Beverly Healthcare-Hillview

Review was denied for an Eleventh Circuit ruling which held that workers required to pass through security and travel on employer-provided vehicles to an airport jobsite did not have to be compensated for that time.  In Bonilla v. Baker Concrete Construction, Inc., the Eleventh Circuit said that since the employees did not perform any work while they were waiting for or riding the company vehicles to the "actual place of performance" of their principal work activities, and since the security screening did not benefit the employer, the time could not be considered compensable under the Fair Labor Standards Act. 

According to a recently released Dept. of Labor opinion letter, meal periods of less than half an hour, in which the employee is completely relieved from duty for the purpose of eating, may be unpaid under “special conditions.” These conditions include whether employees have sufficient time to eat a regular meal, whether there are work-related interruptions to the meal period, and whether the employees have agreed to the shorter period. The DOL letter cautions that meal periods of less than 20 minutes (if unpaid) would be “specially scrutinized” by Wage and Hour investigators to ensure that the time was sufficient to eat a regular meal under the circumstances.

The U.S. Dept. of Labor has recently posted several new opinion letters responding to inquiries concerning a variety of common wage-hour issues.

One letter covers questions on missed meal breaks, premium pay offset, unrecorded work and rounding; the response emphasizes the employer’s responsibility in controlling work time and properly compensating employees for all work “suffered or permitted.”

Another letter opines that the shoes required by the company does not constitute a “uniform” under the Fair Labor Standards Act, and that the employee’s voluntary assignment of wages to the employer for the purchase of the shoes from a third party vendor is not an impermissible deduction of wages.

Other opinions concern whether on call time spent by rescue workers are compensable; that service coordinators for program participants do not meet the professional exemption; and that salespersons selling novelty items at promotional events meet the criteria of exempt outside sales.

Employees who were required to carry work documents while commuting to their worksite do not have to be compensated for this time under the Fair Labor Standards Act, the Second Circuit holds.

The case involved field inspectors who were required to carry assigned documents weighing between 15 and 20 pounds from the time they picked them up on a Friday morning until the time they returned them the following Friday. The inspectors were required to report directly to inspection sites from their homes, and take the materials home with them at the end of the workday. The inspectors claimed that carrying the documents lengthened their commute between 10 to 30 minutes.

The Court says that in the particular circumstances of this case, “the mere carrying of inspection documents without any other active employment-related responsibilities while commuting is not work under the FLSA, except to the extent that it increases the duration of the commute. The record shows that any increase of commuting time in this case is de minimis as a matter of law and thus not compensable under the FLSA.” Singh v. New York City

Laptops, BlackBerries, and other wireless devices intended to connect employees to the office outside of normal working hours can present potential legal dangers for employers under the provisions of the federal and state overtime laws, says the law firm of Pepper Hamilton LLP.

According to a Pepper Hamilton spokesperson, “if a non-exempt employee uses technology such as a cell phone, a remote Internet connection, or a BlackBerry outside of regular work hours and, as a result, works more than 40 hours per week, that work may have to be compensated as overtime.”

The firm advises employers to develop policies that include: limiting the amount of time that non-exempt employees can spend using these devices outside of normal work hours; requiring non-exempt employees to receive permission before using these devices after normal work hours; and requiring non-exempt employees to report all work time outside of normal working hours to ensure payment for work completed.

Pepper Hamilton also advises employers to institute policies regarding the use of cell phones for work purposes while operating a vehicle.