Spring 2019

Browne, et al. v. PAM Transport; Eat, Drink, and Be Wary: Hidden Costs in the Sleeper Berth After New FLSA Ruling

A recent decision issued in Browne, et al. v. PAM Transport, a class action lawsuit brought under the Fair Labor Standards Act (“FLSA”), may signal further national litigation and additional labor costs for time commercial drivers spend off the road.  In the US District Court for the District of Arkansas, a group of truck drivers sued their employer, P.A.M. Transport (“PAM”), alleging they should have been paid for 16 hours out of every 24-hour period pursuant to the FLSA, even though DOT regulations require drivers to spend no more than 14 hours on the road.

The FLSA recognizes that certain employment positions require employees to have periods of down time where they are not necessarily actively performing any employment duties.  The FLSA mandates that employers pay those employees an amount at least equal to minimum wage for those periods of down time. Typically, this applies to receptionists, firefighters, waiters, or other employees who respond to variable workloads. In the context of the transportation industry, the FLSA payment mandate applies to drivers who must wait at certain pickup and delivery points to be loaded and unloaded. For employees who are required to be on duty for 24-hour periods, the FLSA requires employers to pay their employees for their down time, including time spent eating and sleeping, during the full 24-hour period. An employer and employee can enter into an agreement that permits a maximum of eight hours in a 24-hour period to be unpaid. However, an employer must compensate an employee who is required to be on duty for 24-hour periods for a minimum of 16 hours under the FLSA, regardless of whether the employee spends more than eight hours eating and sleeping.  In the absence of any agreement to exclude any portion of the 24-hour period from an employee’s compensation, an employer must compensate the employee for the full 24 hours.

It is against this backdrop of the FLSA that a group of truck drivers sued their employer, PAM, alleging that PAM was required under the FLSA to pay them for a minimum of 16 hours of every 24-hour period, even where some of those 16 hours were spent in the sleeper berth.  The US District Court for the District of Arkansas was tasked with determining whether a commercial truck driver who is in the sleeper berth and therefore “off duty” for purposes of the Federal Motor Carrier Safety Regulations (“FMCSR”), is still “on duty” for purposes of application of the FLSA and therefore entitled to payment of at least minimum wage for time spent in the sleeper berth.

In parsing out the applicable FMCSR and FLSA provisions, the court ultimately determined that commercial drivers not “on duty” under FMCSR hours of service regulations are, in fact, “on duty” for FLSA purposes and therefore entitled to compensation for time spent in the sleeper berth.  In reaching its decision, the court determined that the purpose of the FMCSR is to “make our roads safe,” while the FLSA regulations govern issues related to compensation. Therefore, the court determined that the FLSA provisions as to whether a driver is “on duty” should apply in order to determine appropriate compensation.

While this order is not binding on other courts, it is an indication of potential additional litigation and future risks related to employer liability.  The Browne case highlights the importance of motor carriers having an agreement in place with their employee drivers to exclude the eight hours permitted under the FLSA for time spent in the sleeper berth from a driver’s compensation, in order to reduce the amount of time and wages potentially at issue.

For more information regarding this article, please contact April Kerns at 410.230.2975 or