7.24.19

In a July 22 Opinion Letter, the Wage and Hour Division of the U.S. Department of Labor returned to a common-sense interpretation of regulations regarding “hours worked” and “compensable time” as applied to truck drivers and drivers’ helpers for time spent sleeping and free from all on-duty work responsibility.

Under the new interpretation of transportation employers’ responsibilities under the Fair Labor Standards Act, time that drivers and their helpers spend in a truck sleeper berth is presumptively not “hours worked” or “compensable time” requiring compensation at not less than the federal minimum wage. For the time to be non-compensable, the drivers or helpers generally must be free of all work duties, allowed to sleep or engage in other personal non-work activity, and not on call.

The new opinion letter returns to an interpretation of the FLSA announced in 1943 and 1951, and withdraws interpretations announced in Opinion Letters from 1964, 1966, 1978, and 1979.

The withdrawn opinion letters set forth a relatively arbitrary set of special rules for sleeper berth time: Time in a sleeper berth was working time if the on-duty period of the driver or helper was less than 24 hours. If the on-duty time was 24 hours or more, up to 8 hours of sleeper berth time could be treated as non-working time, even if the actual non-working time was much greater.

In this week’s Opinion Letter, Wage and Hour Administrator Cheryl Stanton, who took her agency position on April 29 after an 18-month confirmation delay, said that the interpretation in the withdrawn opinion letters was “unnecessarily burdensome for employers.” Administrator Stanton indicated that the applicable regulations under the FLSA on waiting time, sleeping time, and travel time should be read together. Taken together, she said, the regulations support a presumption that any time an employee is in a sleeper berth not working and not engaged to wait, while free to pursue personal activities without responsibility for work, should be treated as non-working time and need not be compensated.

Administrator Stanton cautioned that the presumption is rebuttable. If the driver or helper can show that he or she was on duty or frequently interrupted by work activity – for example, if the driver or helper had to do paperwork, read work-related material, or be on call – then the time would be compensable.

According to the Opinion Letter, the

regulations draw a clear distinction between on-duty sleeping time ... and non-working time when the employer permits the employee to sleep in adequate facilities ... The first (on-duty sleeping time) is compensable because it is on-duty — except under certain circumstances during on-duty periods of 24 hours or more — while the second is non-compensable time because it is presumptively off-duty ... This presumption ― that non-working time in which the employee is relieved of all duties is not compensable ― holds true regardless of whether the truck is moving or stationary.

Administrator Stanton indicated disagreement with two well-publicized 2018 federal court rulings that “regarded sleeper berth time as on-duty sleeping time, rather than off-duty travel time.” One case, out of Arizona, involved Swift Transportation Co., and the other, from Arkansas, involved P.A.M. Transportation, Inc.

Trucking operators and associations are pleased with the Opinion Letter. The American Trucking Associations commended the DOL and its leaders, saying that Administrator Stanton and Acting Secretary of Labor Patrick Pizzella “adopt[ed] a straightforward, plain-language reading of the law,” and calling the opinion “consistent with decades-old DOL regulations, the weight of judicial authority, and the long understanding of the trucking industry.” The ATA also commended the DOL for restoring the practice of issuing opinion letters, a practice that was ended by the Obama Administration but reinstated in June 2017 by the Trump Administration.

It is not known whether courts will defer to this new Opinion Letter in interpreting the FLSA or its regulations. Moreover, FLSA opinion letters do not bind state or local agencies interpreting similar situations under state or local wage and hour laws. However, they do represent the enforcement position of the U.S. government and serve as useful and sometimes persuasive guides with respect to the FLSA. Courts, and state and local agencies, may defer to or adopt interpretations in opinion letters.

The latest Opinion Letter comes just before the announced date for issuance of proposed revisions of Hours of Service Regulations from the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration. The rulemaking, expected on July 31, may propose revision of the on-duty/off-duty and driving time restrictions, limitations, and recordkeeping rules for truck drivers and other workers whose duties affect the safe operation of motor vehicles by motor carriers in interstate transportation. According to the FMCSA, the introduction of electronic logging devices and their ability to accurately record hours of service for drivers of commercial motor vehicles prompted numerous requests from Congress and the public for the FMCSA to consider revising certain provisions of the rules. FMCSA regulations are designed to promote safety and have little or nothing to do with compensability of time.

The DOL, in issuing wage and hour regulations related to the interstate trucking industry, generally defers to the special nature of the industry and its special need for efficiency and safety of operations. However, at times, the special nature of the industry has been ignored, which can impair trucking operations and safety, and adversely affect employment opportunities in the industry.

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