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or more, 8 hours was the maximum THE JUDGE’S ANALYSIS in Nebraska and Oregon have reached
amount of time that could be deducted In rejecting this reasoning, Judge contrary conclusions.
for sleeping and meal breaks during Brooks did not ignore Section 785.41 As Rich Pianka, chief counsel for
any 24-hour period. They pointed to and agreed it unambiguously states the ATA Litigation Center, has observed,
a Department of Labor regulation (29 a truck driver is “not working” while the scope of Browne’s impact may be
C.F.R. § 785.22) to support this claim: sleeping. Remarkably, however, he largely limited to driver trainees and
Where an employee is required to found that this did not address whether new hires. That is because most truck
be on duty for 24 hours or more, the time sleeping should nonetheless count drivers’ pay effectively exceeds the
employer and the employee may agree as hours worked for purposes of fed- threshold minimum wage, which at the
to exclude bona fide meal periods and eral minimum wage law. Instead, he federal level is now $7.25/hour. Thus,
a bona fide regularly scheduled sleep- found that the first regulation (Section if a driver’s effective daily earnings
ing period of not more than 8 hours 785.22)—which is not directed at driv- reach at least $116.00, the minimum
from hours worked, provided adequate ers, but all types of workers—was the wage issue associated with “sleeper
sleeping facilities are furnished by the mechanism for determining whether pay” simply will not be triggered under
employer and the employee can usually sleeping time is compensable and that federal law.
enjoy an uninterrupted night’s sleep. If regulation clearly states employers can
sleeping period is of more than 8 hours, deduct only 8 hours for sleeping and
only 8 hours will be credited. Where no bona fide meal breaks. Thus, Judge
expressed or implied agreement to the Brooks reasoned that time spent in the
contrary is present, the 8 hours of sleep- sleeper birth is compensable if it exceeds
ing time and lunch periods constitute 8 hours in any 24-hour period.
hours worked. Judge Brooks was not bothered by JUDGE BROOKS
This argument rests on the notion the fact that this conclusion conflicts REASONED THAT TIME
that a truck driver is “on duty” the with Department of Transportation reg- SPENT IN THE SLEEPER
entire time he is on the road, away from ulations that prohibit commercial driv-
home for 24 hours or more. But this is ers from being on duty for more than BIRTH IS COMPENSABLE
not the understanding of most carriers. 14 hours in any 24-hour period (49 IF IT EXCEEDS 8 HOURS
And, until the Arkansas court opinion, C.F.R. § 395.3) and those that expressly IN ANY 24-HOUR
apparently only one other court had exclude time spent in the sleeper birth
ever reached a similar conclusion. from on-duty time (49 C.F.R. § 395.2). PERIOD.
In 2017, a federal court in Nebraska Instead, he distinguished the two agen-
was faced with this same claim (by the cies’ policy objectives: “The DOT regula-
same plaintiff’s law firm that is repre- tions aim to make our roads safe, while
senting drivers in the Arkansas case) the DOL regulations aim to provide
and concluded that the 8-hour limit workers adequate compensation.” Judge But that is not to say that Browne
applies only “where it can be shown Brooks also found that the disparity is inconsequential. For example, most
that the truck driver or assistant was was a “cost of business that the federal states are not limited to the fed-
continuously on duty.” government has seen fit to impose on eral minimum wage. For states like
To come to this conclusion, the employers of commercial truck drivers Arkansas, which has an $8.50/hour
Nebraska court looked at another in order to ensure an adequate level of minimum wage that is set to increase
Department of Labor regulation (29 road safety and driver compensation.” to $9.25/hour on Jan. 1, 2019, the earn-
C.F.R. § 785.41) directly addressing ings threshold will be higher ($136/day
sleep time for truckers: “An employee THE RULING’S IMPACT and $148/day, respectively) and reper-
who drives a truck … is working while So what does Browne mean for the cussions from Browne could be felt.
riding, except during bona fide meal industry? Fortunately, at this point the Second, Browne could have impact
periods or when he is permitted to sleep Judge’s ruling is of limited precedential beyond the minimum wage arena. Little
in adequate facilities furnished by the value; meaning that other courts are Rock workers’ compensation attorney
employer.” not bound to follow it. It came up in Lee Muldrow points out that increased
In other words, a truck driver is not the face of a procedural motion and earnings mandated for drivers and
working during meal periods or while technically is not a “final judgment”. driver trainees could increase workers’
sleeping in an adequate facility. Thus, if As such, it lacks the precedential impact compensation awards for those who are
he is not working, he’s not on duty and of a ruling from a United States Court injured while on the job. That is because
the 8-hour limit doesn’t apply. of Appeals. Moreover, federal courts
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ARKANSAS TRUCKING REPORT | Issue 6 2018 41