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. Previous DOL guidance suggested that the time spent in a sleeper berth was not compensable if:
- The employee was not working while riding;
- The employee was allowed to sleep in adequate facilities furnished by the employer (such as a sleeper berth); and
- Sleeper berth periods were sufficiently long to allow the employee to use his or her time for the intended purpose.
However, in subsequent guidance, 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
In its new opinion letter, the DOL states that the previous test used to determine compensable time for time spent in a sleeper berth was “unnecessarily burdensome.” The new test looks at whether the employee is “on duty” and relies on the earliest guidance issued by the DOL on the matter. 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” or not working 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. Employees are usually engaged to wait during unpredictable periods that do not last long. 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 duty. 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.