November 8, 2018 4:15 PM, EST

Arkansas Sleeper Berth Case ‘an Outlier,’ Attorneys Say

Sleeper Berth Case A Freightliner Classic sleeper berth. (SelecTrucks)

A decision last month by a federal judge in Arkansas that truck drivers are entitled to compensation for time in the sleeper berth was preceded by two federal cases that resulted in legal rulings more favorable for carriers, including one that was affirmed by an appeals court.

The Arkansas decision was in response to a 2016 class-action driver lawsuit filed against P.A.M. Transport Inc., alleging that the Tontitown, Ark., motor carrier had violated the federal Fair Labor Standards Act and the Arkansas Minimum Wage Law by not paying drivers for the time they spent in the sleeper berth.

In his ruling, U.S. District Judge Timothy Brooks, calling the dispute a “somewhat tangled web of statutes, agency regulations, and agency interpretations of statutes and regulations,” denied P.A.M.’s motion to dismiss the case. Brooks said that while U.S. Department of Transportation regulations prohibit commercial truck drivers from being on duty more than 14 hours in any 24-hour period, DOT regulations have little, if any “bearing on the matter at hand.”

The Arkansas ruling was in conflict with two similar prior cases: Nance v. May Trucking Co. in Oregon and Petrone v. Werner Enterprises Inc. in Nebraska. In those two cases, federal judges agreed with the carriers that sleeper berth time was generally “off-duty” time that was not compensable for drivers. The Nance case reached the 9th U.S. Circuit Court of Appeals and was affirmed by a three-judge appellate panel of the court based in San Francisco.

Sleeper Berth Case


Jim Hanson of the Indianapolis law firm Scopelitis, Garvin, Light, Hanson & Feary, P.C. said the attorney representing the drivers in all three cases, Justin Swidler of Cherry Hill, N.J., would likely be emboldened by the P.A.M. decision and could file similar cases in the future.

Swidler could not be reached for comment.

Hanson, who argued the Nance case before the appeals court on behalf of the carrier, said the P.A.M. decision is contrary to U.S. Department of Labor regulations that say time when workers are in the sleeper berth with the intent of sleeping is not considered work.

“I think it all comes back to the starting point,” Hanson told Transport Topics. “Is an over-the-road driver considered to be on duty 24 hours or more just because he out on the road? The way the plaintiffs argue in the trucking cases is that if somebody takes a 34-hour restart, that’s all compensable on-duty work time.”



Richard Pianka, deputy general counsel for American Trucking Associations, said the Arkansas case is an “outlier” that is causing concern and uncertainty in the trucking industry.

“But in the fullness of time, the issue will come out the right way,” Pianka said. “In the meantime, it muddies the water.”

Neither P.A.M. nor its attorney, Robert Jones III of Fayetteville, Ark., would comment for this story.

“The judge in this [Arkansas] case, through an idiosyncratic reading of a pair of Department of Labor regulations, arrived at the erroneous conclusion that motor carriers must treat all but eight hours of time spent in a sleeper berth as time that requires compensation under the federal Fair Labor Standards Act,” ATA spokesman Sean McNally said. “Other courts have correctly recognized that, under those same regulations, time during which a driver is permitted to rest in the sleeper berth does not count as ‘hours worked’ under the FLSA. Thus, [the Oct. 19 decision] stands as an outlier that hopefully will be corrected in due course.”

Meanwhile, on Oct. 3, Swidler asked Brooks to certify a truck driver class that could include as many as 10,000 P.A.M. drivers.

In the Arkansas case, the drivers alleged that for any given 24-hour shift, Department of Labor regulations prohibit P.A.M. from excluding more than eight hours from compensation for time a driver spends in a truck’s sleeper berth.

Sleeper Berth Case

A P.A.M. Transport truck on Interstate 65 in Shepherdsville, Ky. (John Sommers II for Transport Topics)

P.A.M. disagreed, claiming that it is legally permissible to exclude all time from compensation that a driver spends in a sleeper berth, regardless of whether the amount of time exceeds eight hours.

“Courts that have considered the issue have uniformly held that in construing general DOL regulations together with DOL and DOT regulations specific to truck drivers, all time logged in a sleeper berth is “off-duty” and non-compensable under the FLSA,” P.A.M. argued.

But Brooks said: “The DOT regulations aim to make our roads safe, while the Department of Labor regulations aim to provide workers adequate compensation.”

Brooks said there is no ambiguity on the point that employers must count as hours worked time employees spend riding in a commercial truck while neither sleeping nor eating. During this time an employee, “is working, and any work performed while traveling must be counted as hours worked,” he said.

P.A.M Transport ranks No. 71 on the Transport Topics Top 100 list of the largest for-hire carriers in North America.