July 9, 2020

Volume X, Number 191

July 08, 2020

Subscribe to Latest Legal News and Analysis

July 07, 2020

Subscribe to Latest Legal News and Analysis

July 06, 2020

Subscribe to Latest Legal News and Analysis

Newest Wage and Hour Opinion Letter Addresses Sleeping, Waiting, and Travel Time Principles

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) has issued an opinion letter addressing the compensability of a long-haul truck driver time in a truck’s sleeper berth during multi-day trips.  While this question is highly fact-specific, the WHD’s response offers a useful refresher on the widely applicable Fair Labor Standards Act (“FLSA”) concepts of compensability of waiting, sleeping, and traveling time.

In Opinion Letter FLSA2019-10, issued on July 23, 2019, the employer operates a fleet of trucks, licensed by the Department of Transportation to move property in interstate commerce.  The drivers receive pay for time spent driving, inspecting, cleaning, fueling and completing paperwork (55.84 hours at the federal minimum wage), but not for time in the sleeper berth, where drivers can sleep without interruption.  To resolve whether this practice complies with the FLSA,  the WHD focused on whether the drivers’ activities in the sleeper birth constitute “hours worked” within the meaning of the FLSA, assuming, based on the employer’s description of their job, that the drivers were exempt from the FLSA’s overtime requirements under 29 U.S.C. § 213(b)(1), the Motor Carrier Exemption.  To start, the WHD reviewed applicable regulations on waiting time, including those distinguishing between an employee “engaged to wait” or on-duty (compensable) and an employee “waiting to be engaged” (non-compensable).  Essentially, if “waiting is an integral part of the job,” waiting periods are short or unpredictable, or the employee is not completely relieved of his duties during the waiting periods, an employee’s waiting time is compensable.  The implementing regulations provide examples of these principles in the context of truck drivers.  In a footnote, the WHD advised that employees who remain on an employer’s “premises” to sleep and eat out of necessity due to the remoteness of the workplace or the nature of the job, including but not limited to truck drivers, are not continually on duty provided that they have regularly scheduled hours and have periods where they are completely relieved of all duties.

The WHD then considered the question of sleeping time, reiterating principles expressed in the regulations: Sleeping time is compensable if an employee may sleep during an on-duty period when the employee is not busy.  When, however, an employee is on duty for a “continuous” period of 24 hours or more, an employer can agree to designate 5-8 on-duty hours as a non-compensable sleeping period.

Finally, the WHD considered travel time, citing regulations specific to truck drivers that do not require compensation where, as here, one driver of a multi-member driving team sleeps in a sleeper berth and is completely relieved of duties while another driver drives the truck.  See 29 C.F.R. § 785.41.

The WHD ultimately advised that time spent by a driver in a truck’s sleeper berth while otherwise relieved of duty (whether or not the truck is moving) is presumptively noncompensable time.  As the WHD explicitly acknowledged in this opinion letter, this marks a departure from, and withdrawal of, prior guidance in which the WHD interpreted the relevant regulations “to mean that while sleeping time may be excluded from hours worked where ‘adequate facilities’ were furnished, only up to 8 hours of sleeping time may be excluded in a trip 24 hours of longer, and no sleeping time may be excluded for trips under 24 hours.”  By adopting this interpretation, the WHD hopes to provide a bright-line rule that will be less burdensome for employers to follow and consistent with the prevailing practice in the trucking industry.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume IX, Number 206


About this Author

Jeffrey H. Ruzal, epstein becker green, new york, fair labor, employment

JEFFREY H. RUZAL is a Member in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Mr. Ruzal's experience includes:

  • Representing employers in employment-related litigation in federal courts and before administrative agencies

  • Representing employers in the defense of putative collective actions under the Fair Labor Standards Act and class actions under the New York State Wage and Hour Law

  • ...

Carly Baratt, Epstein Becker Law Firm, New York, Health Care, Labor and Employment Litigation Attorney

Carly Baratt is an Associate in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices, in the New York office of Epstein Becker Green.

Ms. Baratt:

  • Represents clients in employment-related litigation on a broad array of matters, including claims of discrimination, harassment, retaliation, wrongful termination, and breach of employment contract

  • Counsels clients in the health care and financial industries through a range of investigations and enforcement proceedings brought by federal and state agencies, including the U.S. Department of Justice, the Securities and Exchange Commission, the Financial Conduct Authority, the Financial Industry Regulatory Authority, the Commodity Futures Trading Commission, the Office of the Special Inspector General for the Troubled Asset Relief Program, the New York State Department of Financial Services, the New York State Office of the Attorney General, the U.S. Department of Labor, the U.S. Department of Health and Human Services’ Office of Inspector General, and the Federal Transit Administration

  • Represents clients in actions involving residential mortgage-backed securities; securities, accounting, bank, or health care fraud; and violations of the Foreign Corrupt Practices Act

  • Defends clients in False Claims Act and Anti-Kickback Statute cases (including qui tam litigation)