The Department of Labor (DOL) has released a new opinion letter on sleeping time for truck drivers under the Fair Labor Standards Act (FLSA). Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters as general guidance.

Under an FLSA regulation, sleeping time is considered time worked and compensable if the employer permits the employee to sleep during an on-duty period when the employee is not busy. If the employee is required to be on-duty for a continuous period of 24 hours or more, however, the parties may agree to designate between 5-8 hours as a non-compensable sleeping period.

Of specific relevance to truck drivers, another FLSA regulation provides that travel time while driving a truck or being required to ride along as an assistant or helper is considered compensable working time. However, such drivers/assistants are not “working while riding” when they are permitted to sleep in adequate facilities furnished by the employer” such as a sleeper berth and are completely relieved of all duties.

Prior guidance from the DOL found that, by reading these regulations in conjunction, only up to 8 hours of sleeping time may be excluded in a trip 24 hours or longer, and no sleeping time could be excluded for trips under 24 hours. The DOL is now rejecting such guidance as “unnecessarily burdensome for employers.” Instead, in FLSA2019-10, the DOL now states that a straightforward reading of the driving regulation means “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.” Thus, the under-24 hour period of duty prohibition on non-compensable sleeping time and the 8-hour limitation on sleeping time in a period of duty exceeding 24 hours does not apply to truck drivers.

The DOL notes that there may be some instances in which a driver or assistant who retires to a sleeping berth “is unable to use the time effectively for his own purposes,” such as when required to remain on-call, study job-related materials, or do paperwork. In those cases, the time would be considered compensable hours worked.