By Marjorie Johnson, J.D.
In a putative collective and class action brought under the FLSA and Arkansas Minimum Wage Law (AMWL), a group of truck drivers plausibly alleged that their employer was prohibited from excluding from their compensation more than eight hours for time spent in a truck’s sleeper berth for any given 24-hour shift. Denying the employer’s motion to dismiss, a federal court in Arkansas found that purportedly conflicting Department of Transportation (DOT) regulations were immaterial and that Department of Labor (DOL) regulations provided specific guidance on how to determine whether sleeping time is compensable (Browne v. P.A.M. Transport, Inc., October 19, 2018, Brooks, T.).
The truck drivers asserted a variety of claims for alleged violations of the FLSA and the AMWL. After the court conditionally certified the collective action, roughly 3,000 individuals opted in. The employer moved to dismiss their “sleeper berth” claims as well as the Arkansas state law claims brought by two out-of-state plaintiffs. It also filed a motion for judgment on the pleadings seeking dismissal of claims by certain plaintiffs who failed to disclose the lawsuit in their bankruptcy proceedings.
“Sleeper berth” claims. At issue was the employees’ claim that for any given 24-hour shift, the employer was prohibited from excluding from compensation more than eight hours for time spent in a truck’s sleeper berth. The employer argued that it was permitted to exclude all time that a driver spent in a sleeper berth, regardless of whether it exceeded eight hours within a given 24-hour shift. This disputed issue involved a “somewhat tangled web of statutes, agency regulations, and agency interpretations of statutes and regulations,” which the court extensively summarized.
DOL regulations. The FLSA provides that under “certain conditions” an employee is deemed to be working even though some of their time “is spent sleeping or in certain activities,” including where an employee is on duty for 24 hours or more. In these instances, the DOL instructs in Sec. 785.22(a) that the employer and the employee may agree to exclude “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.”
Sec. 785.22(a) further provides that “[i]f sleeping period is of more than eight hours, only eight hours will be credited. Where no expressed or implied agreements to the contrary is present, the eight hours of sleeping time and lunch periods constitute hours worked.” Therefore, the regulation provides that when an employee is required to be “on duty” for 24 hours, he must be paid for at least 16 of those hours, even if he has spent more than eight hours sleeping and eating during that 24-hour period. However, the FLSA does not define the terms “on duty” or “hours worked.”
DOT regulations define “on duty.” The employer pointed to Department of Transportation (DOT) regulations that prohibit commercial truck drivers from being “on duty” for more than 14 hours in any 24-hour period. The regulations define “on-duty” time as “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 “time spent resting in a sleeper berth.”
Difference in definition immaterial. The court refused the employer’s urging that it adopt the DOT’s definition of “on duty” for purposes of the employees’ claims. Those regulations were different than the DOL regulations at issue here, were promulgated pursuant to different statutes, and concerned different policy goals. Indeed, the DOT regulations were geared “to make our roads safe” while the DOL regulations aimed “to provide workers adequate compensation.” There was nothing “inconsistent or inharmonious” about the DOT prohibiting commercial truck drivers from driving for more than 14 hours in a 24-hour period and the DOL requiring their employers to pay them for at least 16 hours in that same period.
Exception for commercial drivers? The employer also pointed to another DOL regulation, Section 785.41, which provides that an employee who drives a truck, or who is “required to ride therein as an assistant or helper,” is considered to be “working while riding,” except when “he is permitted to sleep in adequate facilities furnished by the employer.” The employer argued that while DOL regulations generally require sleep time to be compensable to the extent it exceeds eight hours within a 24-hour on-duty period, Section 785.41 creates an exception for commercial drivers, whose sleep time is never compensable.
DOL’s interpretation. In response, the employees pointed out that this was not how the DOL has interpreted its own regulations and that the court should defer to the DOL’s interpretation. In support, they pointed to the DOL’s field operations handbook as well as DOL advisory opinions stating that truck drivers must be paid for sleep time that exceeds eight hours in a 24-hour shift.
No ambiguity. The court found that it need not decide whether to give controlling deference to the DOL’s interpretation since a careful review of the regulations led it to conclude that there was no ambiguity as to what was required. While Section 758.41 made clear that a truck driver is not “working” when he is sleeping, it was silent as to whether the time spent sleeping should nevertheless count as hours worked. However, any ambiguity was cleared up by Section 785.22(a), which provides that whether time spent sleeping should be counted as hours worked has “nothing to do with whether such time constitutes actual work.” Instead, it turns on whether the employee had been on duty for at least 24 hours, whether he and the employer agreed to exclude it from hours worked, and whether it exceeded eight hours.
Other arguments premature. The court also denied the employer’s motion to dismiss the AMWL claims of two out-of-state plaintiffs on the grounds that the state law could not be applied extraterritorially, ruling that the fact-specific issue should not be decided at the pleading stage. It similarly denied as premature the employer’s motion for judgment on the pleadings, in which the company argued that the doctrine of judicial estoppel should apply to plaintiffs who failed to disclose this lawsuit in bankruptcy filings.
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