A trucking company recently asked a federal court in Arkansas to reconsider its decision certifying a class of drivers based on allegations that time spent in a sleeper birth should be counted as hours worked under the FLSA, due to a newly released Department of Labor (“DOL”) Opinion Letter.
As more thoroughly discussed in a previous Comment, the new DOL Opinion Letter determined that there was a presumption that truck drivers would not be entitled to compensation for sleeper berth time during which they are permitted to sleep, regardless of the length of time. The Arkansas federal court held otherwise.
The DOL issues opinion letters as a means to provide guidance for Fair Labor Standards Act (“FLSA”) interpretation. DOL opinion letters are not binding legal authority, but can serve as support for a company’s good faith defense of alleged FLSA violations for similar situations. However, the United States Supreme Court has stated that “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference. They are ‘entitled to respect,’ but only to the extent that they are persuasive[.]”
Prior to the issuance of the referenced recent DOL Opinion letter on the compensability of sleeper berth time, the Arkansas federal court ruled that 29 CFR § 785.22(a) of the federal regulations required that sleeper berth time over eight hours must be compensated during shifts of 24 hours or longer. In July of 2019, the Wage and Hour Division of the DOL published the opinion letter withdrawing its previous opinion on the topic and declared that 29 CFR § 785.22 refers to on-duty sleeping time, and Section 785.41 refers to non-compensable sleeping time. Therefore, under the new interpretation, truck drivers would not be entitled to compensation for sleeper berth time during which they are permitted to sleep, regardless of the length of time. The new opinion letter determined that requiring sleeper berth time to be compensable would be “unnecessarily burdensome for employers.” On this basis, the trucking company filed a motion to decertify the class action.
District Court’s Decision
The district court, however, did not see this change by the DOL as cause to reverse its previous ruling. The judge noted that deference to agency interpretation of a regulation is appropriate only when the regulation is “genuinely ambiguous after the application of standard tools of interpretation, and even then, only if the agency’s interpretation is ‘authoritative, expertise-based, fair, or considered judgment.’” The court then reiterated its previous reasoning that the regulation in question was unambiguous so it was not necessary to reach the DOL’s interpretation. This decision by the district court was reinforced by the Supreme Court’s decision in Kisor v. Wilkie, which came down in the summer of 2019, and significantly limited the deference that courts are to give to agencies and agency regulations.
The federal district courts who have considered the issue are split on the issue of the compensability of sleeper berth time for over-the-road drivers and trainees. This decision is a potential set back to trucking companies facing collective action lawsuits related to the compensability of sleeper berth time. The new DOL Opinion Letter was seen as a positive development and guidance in the midst of an uncertain legal area. It was of little assistance in this Arkansas case, however. Furthermore, while directly applicable to this court’s decision on the issues related to sleeper berth time, the decision represents a clear example of a court declining to give deference to governmental agencies under the new standard articulated by the Supreme Court last summer. It is advisable to consult with experienced legal counsel to ensure that your policies related to sleeper berth time compensability are in accordance with the appropriate federal regulations and help to minimize your potential exposure. This topic will continue to be closely watched for further legal developments and court decisions dealing with the sleeper berth issue.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at firstname.lastname@example.org. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.