Transportation Law Update: Court Holds Time Spent in Sleeper May Constitute Time Worked
There is a recent case from a United States District Court which is important to the trucking industry. The United States District Court for the Western District of Arkansas recently held that when a truck driver is required to work a 24-hour shift, the employer must compensate for time spent in their sleeper berth, unless they enter into an agreement with the employee, express or implied, that the employer will exclude up to 8 hours of compensation during the 24-hour shift. Browne v. P.A.M. Transp., Inc., No. 5:16-CV-5366, 2018 WL 5118449, at *1 (W.D. Ark. Oct. 19, 2018). While this is not an appellate decision, it could be a sign of this to come before the United States Court of Appeals for the Eighth Circuit.
Plaintiffs in this case, employee truck drivers, brought a class action lawsuit against their employer, P.A.M. Transport, Inc. (“PAM”) asserting violations of the federal Fair Labor Standards Act (“FLSA”), among other claims. Plaintiff’s asserted that Department of Labor (DOL) regulations prohibit PAM from excluding more than eight (8) hours of pay, during a 24-hour shift, for time the truck driver spends in their sleeper berth.
PAM sought dismissal of the “sleeper berth” claims. PAM contended that excluding all time a trucker driver spends in their sleeper berth is permissible, even if the excluded time exceeds an 8-hour period during a 24-hour shift.
Under the FLSA, employers are required to pay their employees at least minimum wage for every hour the employee works. 29 U.S.C. § 206(a). However, the Court noted that the FLSA does not expressly define the terms “on duty” nor “hours worked.”
Accordingly, PAM offered the Department of Transportation (DOT) regulation defining “on duty” as the definition to be adopted by the Court in this matter. Under this DOT definition, on duty time is “all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility for performing work”—and explicitly excludes a driver’s time spent resting in a sleeper berth.
The Court concluded that the DOT definition was immaterial as it is part of a different set of regulations than the DOL regulations that were readily applicable to the issue, and is concerned with different policy goals, such as aiming to make roads safer. Further, the Court reasoned that different laws may assign different technical meanings to the same word or phrase. The Court noted that in this case, however, the DOL acknowledged the difference between their definition for “on duty” and the DOT definition, as a DOL handbook states that “on duty” time under the DOT is governed by different principles and not the FLSA. In response to PAM’s reliance on the in pari materia canon of construction, that statutes addressing the same subject matter should be read as if they are one law, the Court decided not to apply this canon as the DOT and DOL regulations have inconsistent definitions and address concepts which are not “of the same order.”
In search of a definition for hours worked, the Court pointed to 29 C.F.R. 785.22(a), a DOL regulation stating that when an employee is required to work a shift lasting 24 hours or more, the employer and employee can agree to exclude bona fide meal periods and sleep time. Such time excluded from compensation is not to exceed 8 hours, regardless of whether the truck driver actually spends more than 8 hours in their sleeper berth. Thus, an employer must compensate at least 16 hours during a 24-hour shift, even if some of this time is spent sleeping or eating. However, where the employer has not entered into an express or implied agreement with the employee to the contrary, an 8-hour sleep period as well as meal periods are deemed hours worked.
The Court reasoned that, based on their interpretations of the DOL’s regulations, the question of whether a truck driver’s time spent eating or sleeping should be counted as hours worked is irrelevant to whether that time consists of actual work. Rather, the determining factors as to whether the employer must compensate time spent eating and sleeping are whether the shift is at least 24 hours long, whether there is an agreement between the employer and employee to the contrary, and whether the sleep time lasts more than 8 hours. Furthermore, the Court notes that the DOL does affirmatively define excludable sleep time for shifts longer than 24 hours, but less than 48.
PAM also contended that the DOL regulation 29 C.F.R. § 785.41, stating that a truck driver is working while riding, except during bona fide meal periods or when in their sleeper berth, creates an exception to the rule that employers must compensate at least 16 hours during a 24-hour shift. PAM also relied on the regulation’s language that any work the employee is required to perform while traveling counts as hours worked.
In response, Plaintiff’s pointed to the DOL’s interpretation of their regulation, 29 C.F.R. § 785.41, stating that if the trip is “performed within one working day (less than 24 hours), all time on duty on the truck is time worked, even though some of that time is spent in the sleeping berth.” However, bona fide meal periods are expressly excluded by this regulation.
The Court held that, within the DOL regulations, the language was not ambiguous in stating that when a truck driver is sleeping, they are not working. However, the Court found that there was ambiguity as to whether an employer must nevertheless count time spent sleeping as hours worked. Nonetheless, the Court concluded that this ambiguity was resolved by 29 C.F.R. 785.22(a), which states exactly how employers should determine whether sleep time is compensable: not by considering whether the employee is driving, but whether there is an agreement between the employer and employee excluding 8 hours of pay during a 24-hour shift. Readers should continue to follow the case, as an appeal could follow which could change the disposition of the case.
In a related matter, industry sources report the Federal Motor Carrier Safety Administration (“FMSCA”) will no longer conduct a year-long program that would test different sleeper berth schedules. The FMCSA requested public comment on sleeper berth regulations in August 2018 and received over 5,200 comments. Recent research emphasizes that the total amount of sleep may be more important than a single period of accumulated sleep. The FMSCA is expected to incorporate this research into proposed regulatory changes this year and allow drivers to split their sleeper berth time.
Contact John F. Fatino for more information about trucking and transportation matters at 515-288-6041. Jennifer Chavez-Rivera, J.D. candidate, Drake University Law School assisted in the preparation of these materials.