When is sleeping working? According to a recent DOL Opinion Letter, probably not when it occurs off duty in a sleeper berth of an over-the-road truck.

A trucker’s job is to haul a load from Point A to Point B, which often takes several days. During that time, the trucker, by law, has to rest. If that trucker rests in a sleeper berth in the cab of the truck, do you have to pay him or her for that rest time? The Wage and Hour Division (WHD) of the DOL’s recent guidance says you do not if the trucker was relieved of all duties and permitted to sleep in adequate facilities furnished by the employer.

For Instance

A family-owned motor carrier gave the following scenario to the WHD, seeking guidance on whether it needed to pay employees when they were sleeping:

• Over-the-road, long haul truckers take multi-day trips in interstate commerce.
• In a typical trip, the trucker might spend 55 hours driving, inspecting, cleaning, fueling, and completing paperwork, all of which is paid at least minimum wage.
• Also in a typical trip, the trucker might spend 49 hours in the truck’s sleeper berth, during which the driver may sleep, does not perform any work and is not on call to perform work, and for which the company does not pay the trucker.

The company wanted to know if that was OK.

You Probably Don’t Have to Pay a Trucker Sleeping in the Sleeper Berth

In an about face, the WHD changed its opinion, withdrawing several prior opinions and disagreeing with two federal court opinions. After reviewing several aspects of the FLSA and how it applies (including concepts such as “waiting to be engaged” and “engaged to be waiting”) the WHD opined that an employee who is not working and allowed to sleep in a truck’s sleeper berth does not have to be paid for that time. Specifically:

“the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time that is not compensable.”

Keep in mind, the example provided was not a trucker who was sleeping in his truck while it was being loaded. The WHD notes that a driver is “engaged to wait” if “required to wait at a job site for goods to be loaded onto the truck.” In that case, the waiting time, presumptively even if the trucker falls asleep, is compensable.

The DOL is also not saying that a driver who is “on call” in some way does not have to be paid. In the example in the letter the trucker was not on duty at all. The DOL Opinion Letter notes that in cases of an employee who is on call, even if the employee is allowed to sleep when possible, that on-call time may be compensable. However, according to this letter, the time is not compensable if the trucker can sleep in a sleeper berth (or other facility provided by the employer), does not perform any work, has no duties, and is not on call.

As with all DOL Opinion Letters, this one is limited to the facts set out in the letter.