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Scopelitis L & E News: August 2019

by A. Jack Finklea, James H. Hanson, Sara L. Pettinger, David D. Robinson, Donald J. Vogel

August 2, 2019

Scopelitis Labor & Employment News - August 2019

Scopelitis Labor & Employment Practice
Employment-related laws challenge motor carriers to better manage their greatest asset - their employees. Striking a balance between employee needs and business demands requires an understanding of both federal and state wage and hour provisions, particularly as they intersect with safety regulations and other provisions governing the transportation industry.
For more information on compliance and developing practical employment provisions, please contact the Scopelitis Labor & Employment team

Is the Off-Duty Nature of Sleeper Berth Time Now Settled and Established?
As outlined in the Scopelitis Transportation Law Alert sent the day of release, the U.S. Department of Labor (DOL) issued a July 22, 2019 opinion letter holding that all time spent in a sleeper berth by a solo or team driver should be considered non-working, non-compensable time, provided the driver is relieved of all duties and permitted to sleep. What is more, such time is non-compensable regardless of whether the truck is stationary or, in the case of team-drivers, moving.

The DOL’s Plain-Language Reading of Regulations   
The DOL opinion letter indicates that it “adopts a straightforward reading of the plain language” of a DOL regulation on the concept of nonworking time in the sleeper berth. That regulation, 29 C.F.R. 785.41, directly states travel time spent by a truck driver is not compensable when the driver is permitted to sleep in “adequate facilities,” e.g., a sleeper berth. According to the opinion letter, it naturally follows that time spent in the sleeper berth while the truck is at rest is likewise not compensable, provided the driver is relieved of all duties. Additionally, the DOL relied on the plain-language example set forth in 29 C.F.R. 785.16: a truck driver who leaves Washington D.C. at 6 a.m., delivers a load in New York City at noon, and is thereafter relieved from further duty until 6 p.m. when the driver makes the return trip home, is not working during that period from noon to 6 p.m.
The DOL opinion letter provides a welcome contrast to two recent district court decisions applying a different set of regulations, 29 C.F.R. 785.21-22, to sleeper berth time and finding all sleeper berth time in excess of eight hours should be counted as compensable working time.

Carriers Should Make Clear to Drivers What it Means to Mark Their Duty Status as “Sleeper Berth”
The FMCSA’s Federal Motor Carrier Safety Regulations (Safety Regulations) expressly exclude sleeper berth time from the definition of “on-duty” time. However, case law suggests that the FMCSA and DOL enacted the Safety Regulations and the wage and hour regulations for different purposes. Thus, complying with the Safety Regulations may not automatically establish wage and hour compliance. Regardless, the off-duty nature of a driver who marks his or her duty status as “sleeper berth” will be supported for wage and hour purposes to the extent the driver understands sleeper berth entries should only be made when the driver is relieved of all duty.
Motor carriers should, therefore, make it clear in a written document provided to drivers that marking “sleeper berth” means the driver has been relieved of all duty. Carriers can also work with Scopelitis to regularly audit their practices to ensure drivers are not being asked or permitted to perform work while in the sleeper berth.

The DOL’s Opinion is Not Binding . . . and Questions Remain    
The DOL opinion letter provides motor carriers with a measure of certainty that the DOL will deem sleeper berth time not compensable in a wage and hour audit, but it is not binding on courts or private parties filing civil actions. That said, the two recent district court decisions that found sleeper berth time to be largely compensable relied heavily on the ambiguous nature of the regulations, and, therefore, deferred to previous DOL guidance suggesting sleeper berth time was compensable.
With the DOL’s position that sleeper berth time is presumptively not compensable, it stands to reason that the two courts would decide the matter differently if asked to revisit the decisions. The ultimate effect of the DOL opinion letter on these two cases as well as future cases remains to be seen, although the hope is that the DOL opinion letter’s rationale will gain traction and be persuasive when examined by courts. Scopelitis will work to keep clients up-to-date regarding changes.
If you have any questions on the opinion letter and its potential reach, please contact Scopelitis’ Labor & Employment practice.  


News from Scopelitis is intended as a report to our clients and friends on legal developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

© Scopelitis, Garvin, Light, Hanson & Feary, P.C. 2019. All rights reserved. 

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