DOL Withdraws Opinion Letters Regarding Sleeper Berth Time, Independent Contractor Status
Continuing its early pattern of reversing positions adopted during the former administration, on February 19, 2021 the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) withdrew two more Opinion Letters. The first, Opinion Letter FLSA2019-6, addressed whether service providers for a virtual market company were properly classified as independent contractors or in fact were employees. Given the DOL’s recent proposal to delay the effective date of the Independent Contractor Final Rule that was published in early January 2021, with the likely intent of ultimately issuing a new rule, the Agency’s withdrawal of FLSA2019-6 was not surprising.
Perhaps more surprising was the withdrawal of Opinion Letter FLSA2019-10, issued in July 2019. In that Opinion Letter, the DOL concluded that if a truck driver, or driver’s assistant or helper, is completely relieved of duty and is provided with adequate sleeping facilities (including the truck’s sleeping berth), the individual is not “working while riding” and therefore is not entitled to compensation for that time – regardless of how many hours a particular trip lasts or how much duty-free time is provided on that trip. Despite its acknowledgment when issuing FLSA2019-10 that its prior guidance was “unnecessarily burdensome” on employers and that the position taken in FLSA2019-10 promoted a more straightforward reading of the applicable regulations, the DOL nevertheless has now readopted its former position, that only up to 8 hours of sleeping time may be excluded in a trip 24 hours or longer, and no sleeping time may be excluded for trips under 24 hours.