February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Truck Drivers’ Sleeper Berth Time Is Presumptively Not Compensable Under the FLSA, DOL Concludes

In a welcome reversal of its prior guidance, on July 22, 2019, the U.S. Department of Labor (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. DOL Wage & Hour Division Opinion Letter FLSA2019-10. Admitting that its most recent prior guidance was “unnecessarily burdensome” on employers, the DOL specifically withdrew five previous opinion letters and directly disagreed with recent judicial opinions that relied on the prior guidance, under which only up to 8 hours of sleeping time could be excluded in a trip 24 hours or longer, and no sleeping time could be excluded for trips under 24 hours.

For many years, a primary issue for long-haul trucking companies has been to what extent the time spent in the sleeper berth by a driver, assistant, or helper is compensable under the Fair Labor Standards Act (FLSA). Like many questions of compensation under both federal and state laws, the issues center on whether the individual is off-duty and on the level of control the employer is exerting on the individual. While in most cases an employee’s off-duty time is clear and he or she is free to leave the physical workplace, in certain working situations – for example, those of long-haul drivers who spend significant hours in the sleeping berths of their trucks – the divide between on- and off-duty is not so clear. Nevertheless, even under its prior guidance the DOL recognized that these employees do experience times when they are completely relieved of duty while remaining physically present in their trucks.

DOL regulations, as set forth in 29 C.F.R. § 785.41, provide that drivers, assistants, or helpers are not “working while riding” when they are “permitted to sleep in adequate facilities furnished by the employer[.]” With the new Opinion Letter, the DOL has issued its support for the clear and plain reading of this regulation. When a truck driver, assistant, or helper is completely relieved of all duties and is provided with an adequate facility to sleep, that time is non-working, off-duty travel time and is presumed, subject to rebuttal, to be non-compensable. In other words, if the employee is sleeping in the sleeper berth (or gaming, reading, or performing any non-work activity) and is completely relieved of all duties, then he or she does not have to be paid for the sleeper berth time.

The new Opinion Letter provides some much needed clarification for transportation industry employers seeking to comply with the FLSA. However, carriers also must ensure compliance with state laws, which might differ from federal law.

Jackson Lewis P.C. © 2023National Law Review, Volume IX, Number 205

About this Author

Katharine Weber, JacksonLewis Law Firm, Labor and Employment Attorney

Ms. Weber has experience litigating wrongful discharge cases; managing discrimination cases; negotiating collective bargaining agreements; representing employers before the Equal Employment Opportunity Commission and other federal, Ohio and Kentucky agencies; advising management on employment relations; drafting employee handbooks; and negotiating severance agreements.

Ms. Weber regularly advises clients on wage and hour issues. Over the past five years she has served as lead counsel on various wage and hour class and...

Greg Coulter Labor & Employment Lawyer Jackson Lewis  Law Firm Phoenix

J. Greg Coulter is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. His practice focuses on representing private and public employers in all aspects of labor and employment litigation and advice, including representation in federal, state and appellate courts, involving:

  • Discrimination;
  • Retaliation;
  • Harassment;
  • Constitutional claims;
  • Due process claims;
  • Free speech;
  • Workplace safety;
  • State tort claims;
  • Title VII;
  • The Americans with Disabilities Act;
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