DOL WHD takes new position on compensable time for truck drivers in sleeper berth

The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) issued a new opinion letter on an old issue - FLSA2019-10 (Compensability of time spent in a truck’s sleeper berth while otherwise relieved from duty).

In short, if a truck driver is relieved of duty and permitted to sleep (or do whatever (s)he wants) in an adequate truck sleeper berth, then that time is not compensable. That means employers do not need to compensate the employee for that time, or factor it in when calculating overtime.

Not official use.

The situation presented in the opinion letter was:

[A] workweek wherein a particular driver spent 55.84 hours driving, inspecting, cleaning, fueling, and completing paperwork, and 49.96 hours in the sleeper berth, during which time he was permitted to sleep, did not perform any work, and was not on call to perform work.

How many compensable hours? If you answered 55.84, give yourself a prize! This assumes that the truck driver is really off-duty.

By contrast, if the employee remains on-duty (ex. on call (often interrupted), studying job-related materials, or doing paperwork) then that is compensable time. Also, the law draws a distinction between “waiting to engage” and “engaged to wait.” The classic example of the latter is a driver who is required to wait at a job site for goods to be loaded into the truck. That driver is not just waiting to start work, he is on-duty waiting for the truck to be loaded.

This new opinion letter should benefit most employers, as the prior guidance (which was replaced by this new letter) only allowed employers to exclude 8 hours of sleep time as non-compensable for any trip longer than 24 hours (and no hours for trips under 24 hours).