Recent Department of Labor opinion letter clarifies compensability of time spent in sleeper berth

Photo credit: Jim Allen/FreightWaves

Photo credit: Jim Allen/FreightWaves

On July 22, 2019, the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued an opinion letter as to whether the time a driver spends in his or her truck’s sleeper berth qualifies as compensable hours worked under the Fair Labor Standards Act (FLSA). See U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter (July 22, 2019). This opinion letter clarifies this frequently litigated issue and should serve as useful guidance for both companies and courts moving forward.

Background

A small motor carrier operating a total of ten (10) trucks made a potentially big impact when it requested guidance on the issue of whether a driver’s sleeper berth time is compensable. The motor carrier submitted the following example of a driver’s sleeper berth logs in a particular week:

Day 1: 2.82 hours

Day 2: 0 hours

Day 3: 4.75 hours

Day 4: 12.08 hours

Day 5: 11.67 hours

Day 6: 11.17 hours

Day 7: 7.47 hours

In total, the driver spent 55.84 hours on-duty—driving, inspecting, cleaning, fueling, and completing paperwork—and 49.96 hours in the sleeper berth. Specifically, the carrier asked whether it had “satisfie[d] its federal minimum wage obligation under the FLSA to this driver by paying the driver at least $404.85 (55.84 hours worked x the federal minimum wage of $7.25) for the workweek described above.”

DOL Opinion

The DOL started its opinion letter with a brief analysis of what it means to “work,” finding that an “employee is working, and must therefore be compensated, when suffered or permitted to work.” U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter (July 22, 2019); see 29 U.S.C. § 203(e)(1), (g). The opinion letter notes that, “under certain conditions, sleeping time may be considered compensable time if the employer permits the employee to sleep during an on-duty period when the employee is not busy.” Id.; see 29 C.F.R. § 785.16(a). In addition, and according to C.F.R. § 785.41, travel time is compensable when the employer requires the employee to “perform [work] while traveling[.]” Finally, pursuant to 29 C.F.R. § 785.22, an employer and employee may agree to set aside a certain amount of non-compensable sleeping time for an employee that is required to be on-duty for a continuous period of 24 hours or more. 

Following this review, the DOL then conducted an analysis of previous WHD guidance on the issue of sleeper berth compensability, noting that the earliest guidance generally considered this time non-compensable. Id.; see WHD Opinion Letter FLSA-289 (Jul. 18, 1951) “([H]ours of work are not considered to include . . . sleeping in a sleeping berth . . . where such periods are of sufficient length to be used effectively by the employee for the intended purpose, and the employee is actually relieved of all duties and responsibilities . . . .”); WHD Release R-1933 (Feb. 15, 1943) (“Truck drivers riding in the trucks’ sleeping berths . . need not be compensated . . . for time so spent.”). 

In subsequent opinion letters, however, the DOL’s WHD admitted that it “interpreted 29 C.F.R. § 785.41 in conjunction with §§ 785.15-.16 and §§ 785.21-.22 to mean that while sleeping time may be excluded from hours worked . . . only up to 8 hours of sleeping time may be excluded.” Id.; see, e.g., WHD Opinion Letter SCA-118 (June 22, 1979); WHD Opinion Letter SCA-117 (Apr. 26, 1978); WHD Opinion Letter FLSA-213 (Jan. 6, 1964). The July 22, 2019 opinion letter rejected these interpretations, finding them to be “unnecessarily burdensome.” Id

Instead, the opinion letter adopts “a straightforward reading of the plain language of § 785.41, under which the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time that is not compensable.” Id. According to the DOL, this presumption is consistent with the decisions of several courts as well as the prevailing practice in the trucking industry. See Nance v. May Trucking Co., No. 3:12-cv-01655-HZ, 2014 U.S. Dist. LEXIS 5520, at *16 (D. Or. Jan. 15, 2014); see also Petrone v. Werner Enters., Inc., No. 8:11-cv-401, 2017 U.S. Dist. LEXIS 218981, at *40 (D. Neb. Feb. 2, 2017). While the DOL specifically approved and affirmed the interpretation and decisions in the foregoing Petrone and Nance decisions, the DOL also specifically disagreed with and rejected the recent interpretation and decisions in the P.A.M. and Swift decisions. See Browne v. P.A.M. Transp., Inc., No. 5:16-CV-5366, 2018 U.S. Dist. LEXIS 180189, at *6 (W.D. Ark. Oct. 19, 2018); see also Julian v. Swift Transp. Co., 360 F. Supp. 3d 932, 945 (D. Ariz. 2018). 

Takeaway

This opinion letter is good news for trucking industry employers because it clarifies a previously complicated interpretation and simply advises what the WHD initially thought: time spent in the sleeper berth where the driver is not performing any work is not compensable.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com.  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.