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

The U.S. Dept. of Labor proposes to revise “a number of out-of-date regulations” under the Fair Labor Standards Act and the Portal-to-Portal Act.

Among the changes being considered: the tip credit and tipped employee rules; meal credits; clarifying inclusion of bona fide bonus payments in the fluctuating workweek method of computing overtime payments; using a company vehicle for home-to-work commuting; clarifying the non-employee status of volunteers at nonprofit foodbanks; and overtime exemptions for agricultural workers on irrigation projects, and service advisors working for car dealerships or boat sales. Comments on the proposed rules are due on or before September 11, 2008.

An employee who frequently complained about his work hours and lack of overtime pay, then subsequently told to accept his working conditions without complaining, resign, or be terminated has stated a claim for constructive discharge in retaliation for asserting his Fair Labor Standards Act right to overtime pay, a federal district court rules.

The Court says that it does not find that the overtime the employee worked and the lack of overtime pay for those hours to be “objectively intolerable.” However, the threat to terminate him if he did continue to assert his right to FLSA overtime pay “would be objectively intolerable to a reasonable person,” the Court observes, and that a reasonable person in the worker’s position would have felt compelled to resign. Ellis v. Yum! Brands, Inc.

The U.S. Dept. of Labor has issued two new non-administrator opinion letters, one clarifying the time keeping requirements for online computer-based training performed in an employee’s home, and the other stating that the minimum salary for an exempt employee under the Fair Labor Standards Act cannot be prorated when the exempt employee’s hours are reduced.

Loan officers who were classified as non-exempt under the Fair Labor Standards Act, and were paid minimum wage and guaranteed overtime which was treated as a draw and offset from future commissions, may be entitled to additional compensation rules a federal district court in Minnesota. Under the FLSA, retail or service establishments are exempt from overtime provisions if the regular rate of pay for the employee is more than one-and-a-half times the applicable minimum hourly rate, and more than half of the employee’s compensation for at least one month represents commissions on goods or services. The court determined that the mortgage broker was part of the financial industry, and did not qualify for the retail or service exemption. Furthermore, the pay plan violated the FLSA since the rate paid to the loan officers fluctuated with the commissions earned. “Loan officers receive regular commissions; they receive a percentage of their sales,” the court said. “Thus, the alleged regular rate of pay of minimum wage is not a ‘regular’ rate because the commissions earned are part of the regular rate.” Saunders v. Ace Mortgage Funding, Inc.

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.

In an unanimous decision, the U.S. Supreme Court affirms a Dept. of Labor rule which exempted “companionship workers” from the minimum wage and overtime requirements under the Fair Labor Standards Act, even if the workers were employed by a third party agency.

The case involved a worker employed by Long Island Care at Home, Ltd., to provide “companionship services” to elderly and infirm clients. The worker claimed that her employer failed to pay her the minimum wages and overtime due to her under the FLSA and New York law. The DOL’s rule exempting home care workers from coverage includes those paid by third parties, such as home health agencies. The Second Circuit found that the rule was unenforceable. The Supreme Court disagrees with the appeals court, holding that the DOL was entitled to deference in making and interpreting its rules. Long Island Care at Home, Ltd. V. Coke.