DOL: TRUCK DRIVERS DO NOT NEED TO BE PAID FOR OFF-DUTY TIME IN SLEEPER BERTH

The Department of Labor’s (DOL) Wage and Hour Division issued new guidance on July 22, 2019 addressing whether employers have to pay truck drivers for time spent sleeping in a truck’s sleeper berth.  The new guidance modifies previous guidance.

Pursuant to FLSA regulations, an employee’s sleeping time is compensable if the employer allows the employee to sleep while on-duty when the employee is not busy. If the employee is required to be on duty for more than a 24 hour continuous period, the employer and employee may agree to designate 5 to 8 hours as non-compensable sleeping time.   FLSA regulations also provide that drivers or driver assistants are not “working while riding” when they are permitted to sleep in adequate facilities furnished by the employer” such as a sleeper berth and are completely relieved of all duties.

In a previous opinion letter, the DOL opined that:

• A driver’s sleeping time was not compensable if “adequate facilities” were furnished;
• If a trip was longer than 24 hours, only up to 8 hours could be unpaid; and
• If a trip was less than 24 hours, sleeping time was compensable.

In its most recent opinion, the DOL found these restrictions to be “unnecessarily burdensome” for employers, and withdrew its previous opinion letters.   The new guidance states that 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.   That presumption can be overcome where a driver or assistant is unable to use the time effectively for his or her own purposes such as when required to remain on-call, study job-related materials, or do paperwork.   However, as a general matter, retiring to a sleeper berth indicates a driver or assistant has ceased duties, whether the truck is moving or not.

The DOL opinion letter is available here.  While opinion letters are informal guidance and are not legally binding, employers can look to them to determine whether they are following DOL’s position on certain wage and hour topics.

If you have questions about the letter, or need assistance with wage and hour requirements, please feel free to contact Torrey Gerdes, Chris Schmidt or Susan Foster.