Department of Labor withdraws opinion on sleeper berth pay

The U.S. Department of Labor recently rescinded an opinion letter that said companies weren’t required to pay for sleeper berth time if they are “completely relieved from duty.”

The Labor Department issued the opinion letter in response to a question from a trucking company in July 2019.

Last week, the Labor Department said it was withdrawing that letter because several courts have declined to follow its recommendations. The Labor Department said the courts have determined that the opinion letter was inconsistent with regulations and unpersuasive.

The withdrawal means the Labor Department will return to its previous opinion on the issue, which limits uncompensated sleep time on trips lasting more than 24 hours to a maximum of eight hours per day. In addition, no sleeping time may be excluded for trips under 24 hours.

July 2019 opinion letter

The letter was issued in response to a question from a trucking company about whether or not truck drivers need to be paid for sleeper berth time if they are “completely relieved from duty.”

Based on the information provided by the trucking company, the Labor Department wrote in 2019 that the company would not be required to pay for its drivers’ time in the sleeper.

The trucking company, which was not named, provided an example of a driver’s sleeper berth time for a week that broke down as follows:

• Day 1: 2.82 hours
• Day 2: 0 hours
• Day 3: 4.75 hours
• Day 4: 12.08 hours
• Day 5: 11.67 hours
• Day 6: 11.17 hours
• Day 7: 7.47 hours

The company asked whether or not it would satisfy its federal minimum wage obligation under the Fair Labor Standards Act by paying the driver at least $404.84 (55.84 hours worked times the federal minimum wage of $7.25) for the workweek described above.

“The driver’s time spent in the berth was time when the driver was relieved of all duties and was ‘permitted to sleep in adequate facilities furnished by the employer,’ and presumptively nonworking, off-duty time,” wrote Cheryl Stanton, administrator of the Department of Labor’s Wage and Hour Division. “You have represented that, when the driver was in the berth, he did not perform any work and was not on call to perform work. Accordingly, the driver’s time in the berth was not compensable.”

Another Labor Department opinion letter withdrawn

The Labor Department also recently rescinded a worker classification opinion letter that was issued during the Trump administration.

On Tuesday, Jan. 19 – one day before President Joe Biden was inaugurated – the Department of Labor’s Wage and Hour Division issued an opinion letter about whether or not the requiring tractor-trailer truck drivers to implement safety measures required by law constitutes control by the motor carrier for purposes of their status as employees or independent contractors under the Fair Labor Standards Act.

Considered guidance, the Department of Labor concluded last week that the safety measures do not constitute control for purposes of determining independent contractor status and that the owner-operators are likely independent contractors.

On Tuesday, Jan. 26, the Department of Labor announced that it was withdrawing the opinion letter. LL