On July 22, 2019, DOL’s Wage and Hour Division issued an opinion letter (FLSA2019-10) on whether an employee’s time spent in a truck’s sleeper berth is compensable time under the Fair Labor Standards Act. This guidance reversed a position WHD has held since 1964, and appears to be an attempt by DOL to reduce the impact of recent FLSA class action lawsuits filed by truck drivers over this issue.
From 1964 to the present, WHD Opinion Letters reflected the positon that under certain conditions, employees who were on duty for a continuous period of 24 hours or more could go a maximum of eight hours of sleep time without compensation. The conditions required for this uncompensated sleep time included having “adequate sleeping facilities” provided by the employer, and the employee being completely relieved of duties and not performing any work during the sleep period.
In this 2019 interpretation, WHD reverts to an enforcement position it held from 1943 until 1964: Time sleeping in a sleeping berth is generally and presumptively non-compensable, as long as it is of sufficient length, in adequate facilities, the employee is relieved from all duties, and the employee can effectively use that time for his/her own purposes. As a result, WHD withdrew five Opinion Letters that contained contrary opinions enforced by WHD since 1964, including FLSA-213 (Jan. 6, 1964), FLSA-214 (Feb. 17, 1964), FLSA-235 (Nov. 18, 1966), SCA-117 (Apr. 26, 1978), and SCA-118 (June 22, 1979).
The specific example WHD was responding to in this Opinion Letter is as follows: A long-haul truck driver is on a 7-day trip. Work for the week included 55.84 hours of driving, inspecting, cleaning, fueling, and completing paperwork. Another 49.96 hours was spent in the truck’s sleeper berth, doing no work. Daily time in the berth varied from zero hours to 12.08 hours. The employer asked if paying the employee $7.25/hr for 55.84 hours satisfied the FLSA minimum wage requirements. After discussing and applying regulations for waiting time, sleeping time, and travel time, the WHD opined that paying for 55.84 hours would satisfy the FLSA minimum wage requirements. Note that overtime pay is not an issue in this case, because over-the-road truck drivers are generally exempt from the overtime requirements under the FLSA’s Motor Carrier Exemption.
FLSA2019-10 eliminates the previous WHD position capping uncompensated sleep time at a maximum of eight hours per day of trips lasting more than 24 hours. It also eliminates the five-hour minimum on uncompensated sleep time for truck drivers. Previously, if an employee did not get at least five hours of relieved-of-duty sleep, no uncompensated sleep time would have been allowed. In other words, the employee who received only four hours of sleep due to work requirements would have to be paid for those four hours, along with the other four hours spent working rather than sleeping. The scenario posed by the employer for this latest Opinion Letter showed days where the employee had as little as 2.82 hours of sleeping berth time. WHD opined that sleeping periods as short as that were non-compensable along with all of the other non-working time in the sleeping berth for the week.
This letter is undoubtedly good news for trucking industry employers. Despite this being a change in position, the WHD indicates it is “consistent with the decisions of several courts, which WHD understands to reflect the prevailing practice in the trucking industry.” It is not clear that this renewed position of the WHD will reduce the likelihood of FLSA class action lawsuits over the compensability of sleep time for truck drivers. It is only a “sub-regulatory” opinion, without the force of regulations adopted under the notice-and-comment process.
One question left unanswered by this Opinion Letter is whether this position applies to employees who work shifts of 24 hours or longer that include sleep time. This includes employees of residential care facilities, group homes, hospitals, and the like. We will likely have to wait for another opinion letter for the answer.