Dive Brief: 

• The hours truck drivers spend off-duty in their trucks' sleeper berths do not qualify as compensable, a U.S. Department of Labor Wage and Hour Division (WHD) opinion letter published Monday confirmed. A small motor carrier employing a truck driver who "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," would not violate the Fair Labor Standards Act (FLSA) if it paid that worker the federal minimum wage for the 55.84 hours worked, WHD said. 
• WHD said that such time is on-duty, compensable time if an employee is "engaged to wait," meaning the worker is waiting for short periods as "an integral part of the job," rather than "waiting to engage," which would include off-duty periods long enough for the worker to "use the time effectively for his own purposes." Sleeping time might also be compensable if an employer allows workers to do so during on-duty periods that are not busy.
• This latest letter reverses earlier WHD guidance. It stipulated that employers that provided "adequate facilities" for workers to sleep in could only exclude eight hours of sleep time from pay in trips of 24 hours or more — and could not exclude any sleep time from trips that lasted less than 24 hours, the letter explained. WHD said this previous rule was "unnecessarily burdensome" for employers. 

Dive Insight: 

As WHD outlined in its letter, employers must pay workers a minimum wage for all compensable hours to comply with FLSA, but the issue of "waiting time" makes determining whether to pay workers trickier. In its fact sheet on Hours Worked Under FLSA, WHD expands on this concept of waiting to be engaged, noting that "a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity." Truck drivers, however, require special consideration in this area. 

"Truck drivers are in a unique position because they are moving and in charge of when and where they stop work to sleep. Shift workers who are allowed to 'rest' are still engaged to work, like the emergency worker," Marion F. Walker, counsel with Fisher & Phillips LLP and member of the International Association of Defense Counsel, told HR Dive via email.  

The letter's reversal of the previous cap of eight hours on unpaid sleep time in a 24-hour shift might make it easier for employers to comply with the FLSA's minimum wage obligations, which are notoriously sticky for employers. 

“This opinion, which is consistent with decades-old DOL regulations, the weight of judicial authority, and the long understanding of the trucking industry, clears up confusion created by two recent court decisions that called the compensability of sleeper berth time into question," said Chris Spear, president and CEO of American Trucking Associations, in a statement. 

Plaintiffs in a 2018 Arkansas case, Browne, et al. v. P.A.M. Transport, Inc., cited WHD's guidance on the eight-hour cap to argue that their employer violated the FLSA and the Arkansas Minimum Wage Law — but their employer noted that Department of Transportation regulations exempt "time spent resting in a sleeper berth" from on-duty time, court docs said. The judge in this case called it a "somewhat tangled web of statutes, agency regulations, and agency interpretations of statutes and regulations" before denying the employer's motion for partial dismissal, Transport Topics reported. 

In the wake of this letter, employers might need consider if workers' sleep times in these scenarios meet standards for "waiting to engage" and can be interpreted as off-duty hours without a doubt. 

"The ultimate test of compensable time is whether the driver is relieved of his duties while he is allowed to sleep in an adequate berth," Walker said. "Employers with truck drivers should develop policies that direct a driver to sleep a certain number of hours before a trip, or continuing a trip. With the state of technology, a driver can sign in as he begins to drive and sign out as he takes sleep."