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Are Over-the-Road Truck Drivers Required to be Compensated for 16 Hours Per Day?

By James C. Sullivan

Are over-the-road trucking companies required to account for drivers’ sleeper berth time when determining whether the drivers are paid minimum wage?  According to the United States District Court for the District of Nebraska, sleeper berth time is compensable time, and therefore, must be taken into account for purposes of determining drivers’ minimum wage.

On August 3, 2015, the court in Petrone v. Werner Enterprises, Inc., Case No. 8:12CV307, 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.  The question appears to be succinctly answered in the employer’s favor in the 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. (Emphasis added).

Plaintiffs, however, pointed to another DOL 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) provides:

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. (Emphasis added).

Attempting to meld together the inconsistency of these regulations, the court found that section 785.41 “allows an employer to exclude a bona fide sleeping period for drivers … when adequate sleeping periods are provided,” but that “Section 785.22 limits the bona fide sleeping period exclusion to a maximum of 8 hours per 24 hour period.”  But, to reach this conclusion, the court concluded that the drivers were “on duty for 24 hours or more,” as required under Section 785.22(a). 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.

The court granted the company permission to seek appeal to the 8th Circuit Court of Appeals, finding that its decision is a controlling question of law about which there is substantial ground for difference of opinion.  On September 25, 2015, the 8th Circuit declined to take the matter on interlocutory appeal.  The case will likely proceed to a trial on damages soon.

The only other case to evaluate the applicability of Sections 785.22(a) and 785.41 to over-the-road truck drivers is Nance v. May Trucking Co., Case No. 3:12-cv-01655, from the United States District Court for the District of Oregon.  There, the court reached precisely the opposite result, finding that sleeper berth time is not compensable under the DOL regulations.

What now?  The Petrone and Nance decisions are irreconcilable.  While the Nance case is the more logical and reasoned approach, several cases are pending in federal courts throughout the country, and a consensus may be forthcoming.  In the meantime, over-the-road trucking companies should discuss with counsel the applicability of and solutions to these decisions as to their particular circumstances.