by G. Spencer Mynko, Esq.
IS SLEEPER BERTH TIME COMPENSABLE WORK TIME?
When I decided to write about this issue, I assumed, based on my current knowledge, that this would be a fairly straightforward matter. Then I started doing some legal research on the issue: What I came across was surprisingly complicated. Whether sleeper berth time is compensable has remained a contested issue in wage and hour litigation against trucking companies. The Federal and State laws are in conflict, the case law decisions of various Federal Courts are in conflict, and the recent Walmart Transportation 55 million dollar class-action verdict raises serious questions about how this issue is going to be decided once and for all. Considering that various federal courts seem to be in conflict over this issue, I ask: Will the United States Supreme Court have to step in and settle this for everyone?
Let’s take a look at how different courts have decided this contentious matter. Keep in mind that in that some of these cases, by counting sleeper time as “compensable time”, the plaintiffs were able to succeed in their minimum wage claims (by including sleeper time, their hourly wage fell below minimum wage).
Motor carrier prevails on minimum wage claim.
Nance v. May Trucking Co., 2014 U.S. Dist. LEXIS 5520
This is a Federal case out of the United States District Court for the District of Oregon which ruled that motor carriers are not obligated to compensate team drivers who are in the sleeper berth of a moving truck. In this case, the court found that the Federal Labor Standards Act (FLSA), and Oregon minimum wage laws which follow the FLSA, do not require motor carriers to compensate drivers for time they spend in the sleeper berth of a moving truck simply because the truck is moving. The court stated that the employees’ minimum wage claim regarding the employer’s failure to pay trainees for time spent in the sleeper berth of a moving truck failed because the sleeper berth was an adequate sleeping facility for the purposes of 29 C.F.R. § 785.41, and time spent in the sleeper berth, simply because the truck was moving, was not compensable.
Drivers claimed May Trucking violated the FLSA and Oregon minimum wage laws because they claimed they were entitled to be compensated for the time they spent in the sleeper berth of a moving truck because they were effectively under May Trucking’s “control.” The court rejected this assertion, relying on regulations that provide that a driver is not “working” when the driver is permitted to sleep in “adequate facilities.”
Over-The-Road Drivers are entitled to compensation for sleeper berth time.
Petrone v. Werner Enters., 121 F. Supp. 3d 860
The United States District Court for the District of Nebraska ruled sleeper berth time is compensable time, and therefore, must be taken into account when determining drivers’ minimum wage. On August 3, 2015, the court in Petrone granted summary judgment in favor of a class of drivers who claimed that the company did not compensate an amount equal to minimum wage for all compensable time. At issue was whether over-the-road truck drivers must be compensated for time spent in the sleeper berth.
At first glance, you would think the Employer would prevail here because of Department of Labor regulation, 29 C.F.R. § 785.41 which states:
Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drivers a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.
You’d think a Sleeper Berth would be an “adequate facility”, however the Plaintiff Drivers pointed to another Department of Labor regulation, 29 C.F.R. § 785.22(a), claiming that it required the company to compensate drivers for sleeper berth time. Section 785.22(a) states:
Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.
The Petrone Court went on to state, “Section 785.41 allows an employer to exclude a bona fide sleeping period for drivers and passengers when adequate sleeping facilities are provided. However, Section 785.22 limits the bona fide sleeping period exclusion to a maximum of 8 hours per 24 hour period.” The Petrone court’s decision thus leads to the conclusion that drivers on the road more than 24 hours at a time must be compensated for 16 hours per day.
Watch for this case to be appealed to the 8th Circuit Court of Appeals.
The Federal Regulations
The Federal Regulations State:
Time spent in sleeping berths in trucks: Berths in trucks are regarded as adequate sleeping facilities for the purposes of 29 CFR 785.41 and 29 CFR 785.22. However, this rule applies to sleeping berth time of truck drivers or helpers only when they are on continuous tours of duty during trips away from home for a period of 24 hours or more. If the trip begins and ends at the home station and is performed within one working day (less than 24 hours), all time on duty on the truck is time worked (except, of course, for bona fide meal periods) even though some of that time is spent in the sleeping berth.
They go on to state:
On continuous tours of duty of more than 24 hours but less than 48 hours, 1 extra hour of sleep time in excess of the maximum 8 hours may be claimed for each hour beyond 40 that a continuous tour of duty extends, provided that the employee has actually slept such number of hours. For example, in a 42-hour continuous tour of duty, no more than 10 hours could be deducted for sleep time. Similarly, in a 45-hour continuous tour, a maximum of 13 hours could be deducted. However, in the absence of an express or implied agreement concerning the exclusion of sleep time, the time spent sleeping constitutes hours worked even though the tour of duty exceeds 24 hours.
Contact Transportation Attorneys for advice regarding the “express or implied agreement”.
The Wal-Mart Case
Ridgeway v. Wal-Mart Stores Inc., 2016 U.S. Dist. LEXIS 143577
Walmart Transportation was ordered by a federal jury to pay 850 current and former truck drivers a total of $55 million in back pay, stemming from a 2015 ruling that the retail giant’s private fleet did not comply with California minimum wage laws. The jury handed down their verdict in November 2016.
Notably, the fleet did not pay drivers for federally stipulated 10-hour off-duty periods, accounting for $44.7 million of the class-action payout. Other unpaid tasks included pre- and post-trip inspections. Notably, Walmart’s pay practices are consistent with standard industry pay practices, as most carriers do not pay drivers for their off-duty time or for time spent on inspections and other non-driving tasks. (However this is now illegal in California pursuant to Labor Code Section 226.2.)
The Nov. 22-issued payout order follows a May 2015 ruling by Senior District Judge Susan Illston, who said Walmart’s per-mile pay package put the carrier in violation of California law. The private fleet “intentionally [failed] to pay minimum wage to class members” between Oct. 7, 2007 and Oct. 15, 2015, the court ruled.
The payout to class members includes $44.69 million for unpaid 10-hour breaks, nearly $6 million for pre- and post-trip inspections and another $3.96 million for 10-minute rest breaks.
Labor Code Section 226.2 and “Piece-Rate” Pay.
Labor Code Section 226.2 Requires Separate Hourly Pay for Rest and Recovery Periods and “Nonproductive” Time Worked by Piece-Rate Employees AB 1513 creates new section 226.2 of the California Labor Code, which applies to all employees compensated on a piece-rate basis. Pursuant to
LC 226.2 Employees must be separately compensated for “other nonproductive time,” which is defined as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.” That’s why “Sleeper Berth Time” is sure to become a hotly contested and highly litigated issue in California.