Human Resources (HR) Publications

DOL re-routes guidance on paying drivers for sleep time

By: Michelle Higgins

Publication: Benefits & Compensation Regulatory Alert

Date Posted: Nov 14, 2019

Occasionally, transportation laws intersect with labor laws. In this case, it’s to the carrier’s benefit.

In July, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published an opinion letter on whether a driver’s time spent in a sleeper berth — relieved from duty — is compensable hours worked. This letter (FLSA2019-10) provides significant new guidance.

Paying drivers for sleep time arguably has been a hot topic. In fact, some courts as recently as 2018 have regarded sleeper berth time as on-duty sleeping time, rather than off-duty travel time.

The DOL, however, disagrees with the courts’ rulings.

Case in point

A small, family-owned motor carrier asked the DOL for guidance. The carrier operates a fleet of 10 trucks that conduct interstate commerce — primarily over-the-road, long-haul services.

They regularly employ drivers who take multi-day trips and spend much of their time in the sleeper berth (not working).

The carrier provided an example. In this case, the driver’s workweek included 55.84 hours driving, inspecting, cleaning, fueling, and completing paperwork, and 49.96 hours in the sleeper berth. While in the sleeper berth, he was permitted to sleep, did not perform any work, and was not on call.

The carrier inquired if they satisfied the federal minimum wage obligation by paying the driver $404.84 (55.84 hours worked × the federal minimum wage of $7.25) for the workweek. In short, they did.

DOL’s response

The DOL waded through its own regulations and previous guidance, and determined that, while a few of its opinions from decades earlier generally considered sleeper berth time as non-compensable, some guidance since then indicated that it could be.

Previously, the DOL interpreted the regulations to mean that while sleeping time may be excluded from hours worked where “adequate facilities” were furnished, only up to eight hours of sleeping time could be excluded in a trip lasting 24 hours or more, and no sleeping time may be excluded for trips less than 24 hours.

The DOL now concludes, however, that its former interpretation is too burdensome for employers. Instead, it adopts a straightforward reading of the plain language of the applicable regulation, under which the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is non-working time that is not compensable.

Bottom line

There may be circumstances in which a driver who retires to a sleeping berth is unable to use the time effectively for his or her own purposes. For example, a driver who is required to remain on call or do paperwork in the sleeping berth may be unable to effectively sleep or engage in personal activities. In such cases, the time is compensable hours worked.

Based on the facts provided in this case, however, the DOL concluded that the carrier satisfied its minimum wage obligations.

The driver’s time spent in the berth was time that he was relieved of all duties and was “permitted to sleep in adequate facilities furnished by the employer,” and presumptively non-working, off-duty time.

Thus, the driver’s time in the berth was not compensable.

Key to remember: In a recent opinion letter, the DOL states that the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is non-working time and does not need to be paid.

FLSA2019-10

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