DOL opinion a favorable turn in debate on paying drivers for sleeper berth time

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Updated Jul 25, 2019

In a fresh legal opinion issued Monday, the Department of Labor has said that carriers shouldn’t have to pay drivers for off-duty time spent in a sleeper berth — a favorable opinion for fleets after recent federal court rulings argued that drivers should be paid for that time.

Countering recent court decisions involving Swift Transportation and P.A.M. Transportation, the DOL’s Wage and Hour Division determined that drivers are “relieved from all duties…and presumptively [in] non-working, off-duty time,” meaning they’re not owed wages for sleeper berth time. The opinion is the DOL’s latest interpretation of the Fair Labor Standards Act —and its requirement that workers be paid minimum wage for all hours worked — as it relates to trucking and truck drivers, replacing its prior opinions handed down as far back as the 1940s.

“In terms of guidance for the industry, it’s a very helpful and important opinion letter, because it directly addresses the facts that you have for drivers in a sleeper berth capacity,” says attorney Bob Roginson, chair of the trucking and logistics group for Ogletree Deakins. “I think it’s pretty persuasively presented that, under these circumstances, it’s not compensable time.”

The DOL likened drivers’ sleeper berth time to a construction worker being housed near a construction site away from home, says Roginson, where the “workers is not engaged to be performing work or duties,” he said.

Despite the higher-profile cases involving larger fleets like Swift and P.A.M. garnering attention on the issue, it was a smaller, family-owned fleet that wrote the DOL asking the agency to clarify whether drivers were owed minimum wage for sleeper berth time. The DOL didn’t name the carrier, but the 10-truck fleet provided an example to the agency for a drivers’ weekly sleeper berth time, in which a driver was on-duty for 55.84 hours and spent 49.96 hours off-duty in a sleeper berth.

Under the example, the DOL determined that the fleet must pay the driver at least $404.84 to meet the federal minimum wage of $7.25 for the 55.84 hours on duty. The driver was not owed minimum wage pay for the off-duty sleeper-berth time, as the driver was “not engaged to wait” for work during that time.

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The DOL opinion will carry weight in court cases involving disputes over whether sleeper berth time is compensable, says Eddie Wayland, a transportation-focused attorney and partner at the firm King & Ballow, but to what extent it will impact ongoing cases, like the higher-profile class-action lawsuit involving P.A.M., is still unclear.

Such opinions by the DOL aren’t controlling opinions for courts, but “they are entitled to deference,” Wayland says. â€śThey’re the agency that enforces the law and the regulations and interprets them. Courts are certainly not bound by what the Department of Labor says, but it’s a significant opinion and hopefully will provide guidance to courts that face this issue.”

Prior guidance from the DOL and recent court rulings created confusion around sleeper berth time for industry and for courts, he says, prompting the need for updated guidance from the DOL. “It will give clarification to courts, as well as employers, to make sure they’re structure their operations” to ensure that drivers are relieved from duty when they’re in sleeper berth time, he says.