On July 22, 2019, the Department of Labor (DOL) issued an opinion letter—FLSA2019-10—to address whether the time a truck driver spends in a sleeper berth is compensable under the Fair Labor Standards Act (FLSA).
This opinion letter withdraws the DOL’s previous opinion that employers could only exclude up to eight hours during a trip that was at least 24 hours long. The opinion letter also adopts an “on-duty” test as the most appropriate way to determine whether sleeper berth time is compensable.
This DOL shift on the test it uses to determine whether sleeper berth time is compensable may have a significant effect on timekeeping policies and compensation practices.
Motor carriers and other institutions that employ truck drivers should review their policies and procedures to ensure that they are compensating their drivers as required by the FLSA.
Background—The Old Test
Until FLSA2019-10 was issued, the DOL considered that the appropriate way to determine whether sleeper berth time was compensable was to determine whether this time was non-working traveling time. The DOL suggested time spent in a sleeper berth was not compensable if the employee was not working while riding, was allowed to sleep in facilities furnished by the employer or it sleeper berth periods were sufficiently long enough to allow the employee to use time for its intended purpose.
However, the DOL interpreted travel time regulations to mean that employers could only exclude up to eight hours of sleeping time in a trip that is at least 24 hours long and that no sleeping time could be excluded for trips under 24 hours.
The New Test—The “On-duty” Test
With an “unnecessarily burdensome” previous test to determine compensable time spent in a sleeper berth (stated by the DOL), the new test looks at whether the employee is “on duty” and relies on the earliest guidance issued by the DOL. According to the DOL, the “on-duty” test is consistent with other interpretations of compensable time.
Under the FLSA, the time an employee is “waiting” is compensable if the employee is on duty. The FLSA provides that an employee is on duty if he or she is “engaged to wait,” meaning that waiting is an integral part of his or her job. During these periods, it is assumed that the employee’s time “belongs” to the employer. An example of a truck driver engaged to wait is that of a driver waiting for cargo to be loaded into his or her vehicle.
An employee is off duty when he or she is “waiting to be engaged,” meaning the employee is completely relieved of all responsibilities. Off-duty periods tend to be sufficiently long to allow employees to use their time effectively for their own purposes. Off-duty time is not compensable. This is true for truck drivers regardless of whether the truck is moving or stationary.
While this new test simplifies the approach that employers can take to determine their drivers’ compensable time, circumstances may arise when a driver is required to remain on on-duty while he or she is in the sleeper berth, such as remaining on-call or finishing paperwork. For this reason, employers should ensure that they have timekeeping systems, policies and procedures that enable them to comply with the FLSA’s payment requirements.
This Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.