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Are truckers paid to sleep? DOL changes course with a new interpretation

The answer may give you pause to smile

Posted July 24, 2019

First off, the quick answer to the question is no, assuming the driver is relieved of all duties.

Here’s the story:

A small motor carrier that operates a fleet of 10 trucks used for interstate commerce asked the U.S. Department of Labor (DOL) whether the time a driver spends in a truck’s sleeper berth must be paid under the Fair Labor Standards Act (FLSA). Since the drivers of this carrier take multi-day trips, they typically spend much of their time in the sleeper berth and, logically, they are not working during this time.

The carrier provided an example of such a trip, wherein a driver spent 55.84 hours driving, and doing other work, and 49.96 hours in the sleeper berth. The number of hours sleeping varied each day from 0 hours to over 12 hours. While in the berth, the driver did not work, and was not on call to perform work.

The DOL wrangled through its FLSA regulations and its earlier guidance and determined that, while some of its earliest guidance from decades ago on time spent sleeping in a sleeper berth generally considered this time noncompensable, subsequent guidance indicated that it could be; that much would depend upon whether the sleeping time could be excluded for trips under 24 hours. It also referred to guidance regarding a rider sleeping as opposed to assisting the driver while riding along.

In its latest guidance from July 22, 2019, the DOL concluded that their earlier interpretation is unnecessarily burdensome for employers and instead adopted a straightforward reading of the plain language of the regulations. Basically, 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.

The small carrier who posed the question was told that, based upon the information provided, the carrier would need to pay the driver for the 55.84 hours working, but not for the 49.96 hours sleeping. The driver was completely relieved of duty while in the berth.

The DOL also indicated that it disagrees with recent judicial decisions that have regarded sleeper berth time as on-duty sleeping time, rather than off-duty travel time. See, e.g., Julian v. Swift Transp. Co. Inc., 360 F. Supp. 3d 932 (D.Ariz. 2018); Browne v. P.A.M. Transp., Inc., No. 5:16-cv-5366, 2018 WL 5118449 (W.D. Ark. 2018).

The DOL’s answer could have been different with a different fact pattern. If, for example, the driver was on call or spent part of the time in the berth taking care of paperwork, the DOL might have seen that during that time, the driver was not completely relieved of duty and, therefore, would need to be paid.

The DOL also assumed, based on the information provided, that the drivers in question are neither “required to perform work on a helter-skelter basis,” nor are the periods in the sleeper berth “so cut through with frequent work calls” that the time in the sleeper berth is not the driver’s own.

Otherwise, it’s nice to know that drivers are generally not driving while they are sleeping.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

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