DOL Pivots, Providing Guidance Likely To Mitigate Recent Blitz of Minimum Wage Class Actions Related to Sleep Time And Off Duty Time Spent In Vehicles

Executive Summary: Almost all long-haul drivers are exempt from overtime under the motor carrier exemption to the Fair Labor Standards Act (FLSA). However, these same drivers are not exempt from the FLSA’s minimum wage requirements. Due to the ongoing driver shortage, drivers’ rates far exceed the minimum wage, especially when considering the Motor Carrier Safety Act limits on-duty hours to 60 per week. So it’s no surprise that many motor carriers were caught off guard when federal courts found them liable for not paying minimum wage because they failed to count the time drivers spent sleeping as hours worked. In guidance issued July 22, 2019 the United States Department of Labor (DOL) addressed the circumstances when time in the sleeper berth is compensable and shifted the burden to drivers to prove they were performing compensable work in the berth, providing “straightforward” guidance for the motor carrier industry and a defense to the minimum wage claims.

In a recent win for motor carriers, the DOL issued new guidance rejecting the Department’s earlier, “unnecessarily burdensome” interpretation of whether time spent by drivers in a truck’s sleeping berth was compensable time and adopting a “straightforward” analysis: according to the new guidance, “time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time that is not compensable,” regardless of whether the truck is moving or stationary.

In addressing the inquiry, the Department noted that long-haul drivers can be employed to undertake multi-day trips in interstate commerce. During such trips, drivers can spend a significant amount of time in the truck’s sleeper berth. Whether the hours drivers spent in the sleeper berth was compensable could drastically impact compensation.

Earlier guidance from the DOL had interpreted the FLSA regulations to permit employers to exclude some sleeping time from hours worked when “adequate facilities” were furnished, but only up to 8 hours in a trip 24 hours or longer and no sleeping time in trips under 24 hours.

This new guidance strikes a commonsense balance focused on whether the driver is able to “use the time effectively for his own purposes.” The presumption is now that time spent in the sleeper berth is non-compensable time, though the driver may demonstrate that he or she was “on duty” while in the sleeper berth, making the time compensable. Examples of compensable sleeper berth time provided included being on call, completing paperwork, or studying job-related materials.

In recent years, plaintiffs’ attorneys had attacked similar fact patterns as violating the FLSA’s minimum wage provisions. Even where drivers are exempt from overtime requirements under the motor carrier exemption, inclusion of often significant sleeping time could result in the drivers’ pay dropping below the minimum wage rate. Several United States District Courts had ruled in favor of the plaintiff drivers in these suits, finding that time spent in the sleeper berth was compensable on-duty sleeping time.

The DOL’s Opinion Letter specifically references recent federal decisions finding sleeper berth time as on-duty sleeping time, rather than off-duty travel time, and states the Department’s disagreement with those decisions. See, e.g., Julian v. Swift Transp. Co. Inc., 360 F.Supp.3d 932 (D. Ariz. 2018); Browne v. P.A.M. Transp., Inc., No. 5:16-cv-5366, 2018 WL 5118449 (W.D. Ark. 2018).

The DOL’s new guidance is a significant win for motor carriers. However, motor carriers must still comply with state laws that may differ (for example, New Jersey) and jurisdictions that refuse to adopt the DOL’s new opinion letter. In these jurisdictions, however, this opinion letter may provide the basis for to assert a good faith defense.

If you have any questions regarding the new opinion letter or any other FLSA issue, please contact the authors of this Alert, Salvador Simaossimao@fordharrison.com, co-chair of FordHarrison’s Wage/Hour practice group, member of our Transportation practice group, and partner in our Berkeley Heights, New Jersey office, David Kimdkim@fordharrison.com, partner in our Berkeley Heights office and member of our Wage/Hour and Transportation practice groups, or Joanna Richjrich@fordharrison.com, counsel in our Berkeley Heights office and member of our Transportation practice group. Of course, you may also contact the FordHarrison attorney with whom you usually work.

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