A recent opinion letter issued by the U.S. Department of Labor (“USDOL”) reflects a shift in the Department’s intention with respect to wage and hour laws as applied to a driver’s time spent sleeping. Specifically, the new rule provided that “the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively nonworking time that is not compensable.” A distinction exists, however, for employees who are “engaged to wait;” which was defined as a scenario where “waiting is an integral part of the job” and wait times are short or unpredictable. Although non-binding, the new interpretation by the USDOL will certainly provide guidance to courts who may very well show deference to the USDOL’s reasoning.
The prior guidance required a confusing analysis which yielded inconsistent treatment for when a driver’s sleeping time should be compensated. For example:
- 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 23 hours.
USDOL’s new opinion letter acknowledged the applicability issue and noted that the prior guidance was “unnecessarily burdensome” on employers.
The new guidance is much more straightforward and provides that “the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively nonworking time that is not compensable [emphasis added].” However, this does not relieve an employer from compensating under all scenarios where a driver is required to sleep during a haul. The opinion letter enumerated a distinction for drivers who are “engaged to wait;” which was defined as a scenario where “waiting is an integral part of the job” and wait times are short or unpredictable. For example, an employer is likely still required to compensate for time spent waiting for goods to be loaded on a truck, regardless of whether the driver is sleeping during that period. Activities such as this are considered on-duty downtime, which are typically compensable.
Importantly, the opinion letter is non-binding on courts in their application of federal and/or state wage and hour laws. However, this does not mean that the USDOL’s opinion is meaningless. These letters serve as informal guidance which courts may show deference if they are supported by well-established reasoning.
The practice of issuing opinion letters was suspended in 2010 by President Obama and was recently revived under President Trump in 2018. This opinion letter represents a trend by USDOL to influence notable litigation topics which have been treated inconsistently across various jurisdictions.