Do Truck Drivers Need to Be Paid While Sleeping?

[Update: The DOL withdrew this opinion letter on Feb. 19, 2021]

Employers don't have to pay long-haul truck drivers for time they spend in a truck's sleeping berth, so as the drivers are relieved of all duties, according to the latest opinion letter from the U.S. Department of Labor (DOL). 

Although the letter applies to a specific employer's facts, it highlights the department's continuing effort to address hot topics under the Fair Labor Standards Act (FLSA).

The letter provides much-needed clarity for the trucking industry, said Bob Roginson, an attorney with Ogletree Deakins in Los Angeles. The letter is specific to the trucking industry, he noted, but it indicates the DOL's intention to clarify federal wage and hour laws to reduce burdensome interpretations that aren't clearly supported by the law and regulations.

Opinion letters serve as informal guidance and are not binding, but employers that rely on them can at least show that they are following the DOL's position.  

Courts may defer to such guidance if it's supported by well-established reasoning, explained Marty Heller, an attorney with Fisher Phillips in Atlanta. Employers and HR professionals can refer to the opinion letters, he said, but they should remember that opinion letters show only that the DOL supports a certain position, and the courts will still ultimately decide the rule of law.

Lee Schreter, an attorney with Littler in Atlanta, said she's a fan of the opinion letter process. "It's very egalitarian," she said, noting that anyone can ask the DOL for an opinion letter, including employees, employers, attorneys and unions.

"There are lots of questions that come up," Schreter added. So opinion letters can help ensure that stakeholders have the information they need to comply with laws and regulations.

New Interpretation

In the most recent letter, the DOL abandoned its former guidance on whether drivers' sleeping time is compensable. Previously, the department's Wage and Hour Division said:

• A driver's sleeping time may be unpaid if "adequate facilities" are furnished.
• Up to eight hours of sleeping time could be unpaid for a trip of at least 24 hours.
• Drivers should be paid for sleeping time during trips lasting less than 24 hours. 

In the new opinion letter, the DOL said the prior guidance was "unnecessarily burdensome" for employers, so the department adopted a "straightforward reading" of the FLSA.

"[T]he time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively nonworking time that is not compensable," the letter read.

But there's a difference between on-duty sleeping time when an employee is "engaged to wait" for more work and uninterrupted off-duty time when an employee is "waiting to be engaged," the letter said. An employee is "engaged to wait" for more work when "waiting is an integral part of the job" and waiting times are short or unpredictable, such as when a driver is waiting for goods to be loaded on the truck. On-duty downtime is usually compensable.

In the situation addressed in the DOL's most recent opinion letter, the truck driver spent about 55 hours a week on tasks such as driving, cleaning and fueling the truck, and completing paperwork. The driver also spent around 50 hours off duty in the sleeper berth. The driver didn't perform any work and was not on call during the time spent sleeping.

The DOL said the employer would satisfy the FLSA by paying the driver at least minimum wage for the 55 hours spent working, and that the driver's time spent in the sleeping berth was not compensable.

"In so concluding, the DOL resolved an apparent discrepancy in the federal regulations, which some courts have relied upon to find that such nonworking time may be compensable," Roginson said.

Although the letter targets a specific industry, it could have broad reach, Schreter noted. Issues regarding on-duty and off-duty time are not limited to the trucking industry.

Expect More Opinion Letters

In 2010, President Barack Obama's administration announced that it would cease issuing opinion letters, but the practice was revived under President Donald Trump in 2018.

"The trend we are seeing is really fascinating," Heller said. "The DOL is using opinion letters to target hot litigation topics and aiming at hotbeds for collective actions."

For instance, the department recently addressed the controversial issue of whether gig-economy workers are independent contractors or employees. According to a May 1 letter, at least some gig workers who find jobs through smartphone apps—such as drivers for ride-hailing services—are not covered by the FLSA.

The DOL concluded that workers who use a technology platform or "virtual marketplace" to connect with consumers are independent contractors rather than employees of the platform provider. Employers should note, however, that gig workers may be deemed employees under some state laws.

[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]

Recent opinion letters have also covered technical compliance issues under the FLSA. For example, three letters published on July 1 addressed the following topics:

• Permissible rounding practices for calculating an employee's work hours.
• Applying the "highly compensated employee" exemption from overtime pay to paralegals who are employed by a trade organization.
• Calculating overtime pay for nondiscretionary bonuses that are paid on a quarterly and annual basis.

Given the DOL's recent activity, now may be an appropriate time for employers to request an opinion letter on issues affecting their workplace, Heller said, particularly if the issues are "high impact."