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No Need to Pay Drivers for Sleeper Berth Time

DOL says truck driver teams can be paid only for when they are working.

According to the U.S. Department of Labor (DOL), trucking employers do not need to pay truck drivers for the time they spend sleeping in tractor-trailer sleeper berths.

The July 22 Opinion Letter issued by DOL’s the Wage and Hour Division offered its interpretation of regulations regarding “hours worked” and “compensable time” as applied to truck drivers and drivers’ helpers for time spent sleeping and free from all on-duty work responsibility.

The new opinion letter returns to an interpretation of the Fair Labor Standards Act (FLSA) announced in 1943 and 1951, and withdraws interpretations announced in Opinion Letters from 1964, 1966, 1978 and 1979, notes David P. Phippen, an attorney with the law firm of Constangy Brooks Smith & Prophete.

The withdrawn opinion letters set forth a relatively arbitrary set of special rules for sleeper berth time: Time in a sleeper berth was working time if the on-duty period of the driver or helper was less than 24 hours, he recounts. “If the on-duty time was 24 hours or more, up to eight hours of sleeper berth time could be treated as non-working time, even if the actual non-working time was much greater.”

In the July 22 letter, Wage and Hour Administrator Cheryl Stanton says the applicable regulations under the FLSA on waiting time, sleeping time and travel time should be read together, Phippen says. When taken together, she argues they support a presumption that any time an employee is in a sleeper berth not working and not engaged to wait, while free to pursue personal activities without responsibility for work, should be treated as non-working time and need not be compensated.

“This presumption—that non-working time in which the employee is relieved of all duties is not compensable—holds true regardless of whether the truck is moving or stationary,” Phippen explains.

The letter could prove to be especially useful for trucking employers because of conflicting court decisions on the issue which held that off-duty time may be limited to eight hours a day when a driver is on a trip and spending off-duty time in their sleeper, says attorney Anderson Scott of the law firm of Fisher Phillips. He advises that employers should make sure they understand the full ramifications of the opinion letter before changing pay practices.

The DOL letter takes direct aim at several 2018 federal court decisions from Arizona and Arkansas that ruled sleeper berth time should be compensated since it was considered “on duty” time. American Trucking Associations hailed the opinion letter for rebutting these opinions, saying that it “clears up confusion created by two recent court decisions that called the compensability of sleeper berth time into question.”

While the letter doesn’t have the explicit power to overrule those cases directly, courts generally follow the guidance issued by the agency implanting the regulations in question—meaning that this opinion letter should be followed the next time the issue is challenged in court, Scott points out.

What to Keep in Mind

“Before you alter your pay practices, it’s worth noting that the opinion letter is not absolute,” Scott warns. It provides several circumstances that would cause you to be required to pay your drivers for time they spend in their sleeper berths.”

In one of these situations, drivers would be considered to be “engaged to wait” and due to be paid if their time in the sleeper berth belonged to and was controlled by the employer. For example, if the driver happens to be in the berth while required to wait at a job site for goods to be loaded into their truck, they would need to be compensated for that time.

In another case, if the driver is unable to use the time in the sleeper berth effectively for their own purposes, they would still need to be paid for that time. The DOL letter notes that drivers who are required to remain on call, study job-related materials, do paperwork or perform similar activities while in their sleeper berths may be unable to effectively sleep or engage in personal activities. In those scenarios, trucking companies would still have an obligation to pay their drivers for that time.

Scott stressed that it also is important to remember the letter is a non-binding piece of guidance from a federal agency, and doesn’t necessarily relieve employers of their obligation to pay drivers who spend time in their sleeper berths depending on the circumstances of their arrangement or the relevant state law that may be in play.

“You will want to coordinate with your labor and employment counsel to ensure you understand the specific effect this letter will have on your operations, and to see whether you can adopt new pay practices to conform with this standard,” he says.

Keep in mind that sweeping revisions of the commercial driver Hours of Service regulations are expected to be proposed any day now by the Federal Motor Carrier Safety Administration. That rulemaking may propose revision of the on-duty/off-duty and driving time restrictions, limitations and recordkeeping rules for truck drivers.

FMCSA regulations are designed to promote safety and have little or nothing to do with compensability of time. DOL, in issuing wage and hour regulations related to the interstate trucking industry, generally defers to the special nature of the industry and its special need for efficiency and safety of operations, Phippen says. “However, at times, the special nature of the industry has been ignored, which can impair trucking operations and safety, and adversely affect employment opportunities in the industry.”

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