Montoya v. CRST Expedited, Inc. ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1125
JUAN CARLOS MONTOYA, on behalf of himself and all others
similarly situated; MAURICE SMITH; JEAN PAUL BRICAULT, JR.,
Plaintiffs, Appellees,
v.
CRST EXPEDITED, INC.; CRST INTERNATIONAL, INC.,
Defendants, Appellants.
No. 21-1482
JUAN CARLOS MONTOYA, on behalf of himself and all others
similarly situated; MAURICE SMITH, on behalf of himself and all
others similarly situated; JEAN PAUL BRICAULT, JR., on behalf of
himself and all others similarly situated; JOSE TORRES ROSADO,
on behalf of himself and all others similarly situated; AUSTIN
CODDINGTON, on behalf of himself and all others similarly
situated; KEVIN HAMILTON, on behalf of himself and all others
similarly situated; LARRY WIMBISH, on behalf of himself and all
others similarly situated; RINEL TERTILUS, on behalf of himself
and all others similarly situated,
Plaintiffs, Appellees,
v.
CRST EXPEDITED, INC.; CRST INTERNATIONAL, INC.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Howard, Circuit Judges.
James H. Hanson, with whom James A. Eckhart, E. Ashley
Paynter, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Wesley
S. Chused, Daniel R. Sonneborn, Gregory P. Hansel, Elizabeth A.
Olivier, Randall B. Weill, Jonathan George Mermin, and Preti,
Flaherty, Beliveau & Pachios, Chartered, LLP were on brief, for
appellants.
Hillary Schwab, with whom Rachel Smit, Fair Work, P.C.,
Andrew S. Schmidt, Peter G. Mancuso, and Andrew Schmidt Law,
PLLC were on brief, for appellees.
Richard Pianka and ATA Litigation Center on brief for
American Trucking Associations, Inc., amicus curiae.
Seema Nanda, Jennifer S. Brand, Rachel Goldberg, Heather
Maria Johnson, and Counsel for the Secretary of Labor on brief
for the United States Secretary of Labor, amicus curiae.
Michaela C. May and Bennett & Belfort, P.C. on brief for
the Massachusetts Employment Lawyers Association and the
National Employment Law Project, amici curiae.
Nicole Horberg Decter, Jasper Groner, and Segal Roitman,
LLP on brief for the Massachusetts American Federation of Labor
and Congress of Industrial Organizations, amicus curiae.
December 12, 2023
LIPEZ, Circuit Judge. Motor carriers CRST Expedited
and CRST International ("CRST") use a "team driving model" to
transport goods across the country, whereby two drivers ride in
a truck and alternate their time between driving and resting in
the truck's sleeper berth. This collective action requires us
to decide whether, as a matter of first impression, the time
these long-haul truck drivers spend in the sleeper berth is "on-
duty" time within the meaning of Department of Labor
regulations, and, if so, whether CRST must compensate a driver
who is on duty for 24 hours or more for time that driver spends
in the sleeper berth in excess of eight hours within a full 24-
hour period. Granting summary judgment for former CRST drivers
Juan Carlos Montoya and others,1 the district court determined
that such time is compensable work. We affirm.
I.
A. Background
CRST is a motor carrier providing trucking services
across North America that runs a driver training program for
aspiring long-haul truck drivers. Montoya and the other members
of the collective action were trainee long-haul truck drivers
1 Montoya and the other named plaintiffs originally brought
separate actions against CRST on their own behalf and on behalf
of others similarly situated. See 29 U.S.C. § 216(b). The
separate cases subsequently were combined through settlement
negotiations that disposed of all claims except the sleeper
berth claim. For convenience, we refer throughout our opinion
only to Montoya's action.
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participating in CRST's program. The training program is
comprised of four phases. The first two phases are a practicum
enabling trainee drivers to earn a commercial driver's license
and a companion classroom-based course with instruction on the
practical use and application of these licenses.2 During phase
three, when trainee drivers sign an eight-to-ten-month
employment contract and CRST begins to compensate them for their
driving, new trainees are matched with a more experienced CRST
driver to complete approximately four weeks of team driving.
When the more experienced driver determines that the trainee
driver is ready, the trainee advances to stage four, in which
the trainee is matched with a co-driver to complete the
additional seven to nine months of the contract term as a team
driver.
CRST's team-based driver training program is uncommon.
CRST is one of the few companies nationwide that hires
inexperienced drivers and trains them in teams. The team
driving model assigns to each truck two drivers who take turns
driving the vehicle. These drivers structure their driving time
in accordance with the "Hours of Service" regulations of the
United States Department of Transportation ("DOT"). The
regulations specify, in relevant part, that a driver may be "on
2Some drivers who already have a commercial driver's
license and relevant driving experience may advance directly to
phase two.
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duty" for a maximum of fourteen hours at a time. 49 C.F.R.
§ 395.3(a)(2). Within this fourteen-hour period, a driver may
only drive for a total of eleven hours; the remaining three
hours may be spent taking care of non-driving responsibilities,
such as loading or unloading the vehicle. See id.§ 395.3(a)(3). After fourteen hours of on-duty time, a driver
must take at least ten consecutive hours of time "off duty" as
defined by the DOT regulations, during which the driver cannot
drive, load, or unload the vehicle, or have other
responsibilities related to the truck and its equipment. See
id. §§ 395.3(a)(1); 395.2. The dispute before us concerns this
"off-duty" time only.
CRST's team-driving approach typically results in one
person driving while the other driver is off duty (for purposes
of the DOT regulations) in the sleeper berth of the truck.3 The
drivers can then switch when the off-duty driver has completed
the required ten-hour period. Drivers regularly take more than
ten hours of sleeper berth time at a stretch, depending on how
driving teams structure their driving time; indeed, some drivers
have spent up to sixteen hours in the sleeper berth of the
Off-duty time can also be spent in the passenger seat of
3
the truck, but the record indicates that drivers spend most of
their off-duty time in the sleeper berth.
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truck.4 CRST's approach allows the company to keep their trucks
in near continuous motion, for multiple days, while complying
with DOT regulations limiting the hours a driver can spend
behind the wheel. The drivers "trade . . . on and off until
they get from origin to destination," thereby allowing CRST to
"get twice the utilization out of the truck and keep that cargo
moving . . . twenty hours a day or more."
The sleeper berth of the truck is a driver's "living
quarters" during these long stretches of time on the road. The
space typically contains bunk beds, a sitting area, and perhaps
a microwave or small refrigerator, but does not have a bathroom
even though drivers are frequently there for ten or more hours
at a time while the truck is in motion. Sleeper berths must, at
a minimum, measure 24 inches in width, 75 inches in length, and
24 inches in height (which is measured from the highest point of
The record provides an example of how team drivers may
4
schedule their driving. Driver A may start the trip as the
driving teammate and drive for ten hours. During this time,
Driver B is in the sleeper berth. After ten hours, the drivers
switch and Driver B drives for ten hours while Driver A rests.
The drivers continue to switch after each ten-hour period until
they get to their destination. Alternatively, because drivers
"have a fourteen-hour window" before they must take ten hours
off, Driver A might complete a fourteen-hour shift of driving
and truck maintenance while Driver B spends fourteen hours in
the sleeper berth, and the drivers then switch. The record does
not clarify under what conditions a driver would be in the
sleeper berth for sixteen hours, considering that drivers must
rest after each fourteen-hour period, but the parties do not
dispute that "[t]here are several days on which CRST has
recorded twelve to sixteen hours of sleeper berth and other off-
duty time . . . for the named [plaintiffs]."
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the mattress on the top bunk). 49 C.F.R. § 393.76(a)(1). When
in the sleeper berth, drivers are at liberty to pursue their own
activities within the confines of the space and facilities
provided to them. Drivers can make food, connect to the
internet if internet connectivity is available, read, watch
television or movies, and sleep.5 When the truck is not in
motion -- for example, when the teammates swap over at a rest
stop -- drivers are also able to leave the truck and attend to
their needs before resuming driving. CRST explains that
"[g]enerally [the drivers] eat and take care of personal hygiene
during these transitions." Drivers are free to manage their
time and schedules during a journey "[a]s long as they're still
on their plan to deliver that load on time[.]" In emergency
situations, the non-driving teammate may also be called upon to
help with a maneuver or provide emergency assistance, even
though he is "off duty" per the DOT's regulations. See 49
C.F.R. § 395.1(b)(2).
Driver compensation is covered by a different set of
regulations, issued by the United States Department of Labor
("DOL"). The DOL regulations, which are discussed in detail
below, provide that employers can exclude a sleeping period of
no more than eight hours per day when calculating an employee's
The record lacks information on whether CRST imposes rules
5
on drivers for their sleeper berth time beyond the DOT
regulations.
- 7 -
compensation. See 29 C.F.R. § 785.22.6 CRST calculates the pay
owed to team drivers according to the total number of miles
dispatched to the team for the shipment. Each member of the
driving team is paid one half of the total number of miles
attributed to the shipment at a rate of pay that corresponds
with the driver's level of experience, with less experienced
drivers receiving a lower rate of pay per mile. Thus, the
hourly wage of the drivers can be calculated by dividing their
received pay by the total number of hours worked during the pay
period. CRST does not count time spent in the sleeper berth as
hours worked and so does not include the sleeper berth hours in
the calculation of the drivers' hourly wage. If the sleeper
berth time is counted as hours worked, however, CRST's drivers
receive an hourly wage that falls short of the minimum wage
under the FLSA.7 See 29 U.S.C. § 206.
6 29 C.F.R. § 785.21 provides that "[a]n employee who is
required to be on duty for less than 24 hours is working even
though he is permitted to sleep or engage in other personal
activities when not busy." The compensability of sleeper berth
time for drivers with periods of duty less than 24 hours is not
at issue in this appeal.
7 Montoya's salary for the first pay period in November 2014
provides a clear example of how CRST's formula works. Montoya
began his phase three training on October 28, 2014, and he began
earning $0.25 per mile, in accordance with CRST's pay scale for
drivers of his level of experience. In November 2014, Montoya
completed a 1,871-mile trip from Cedar Rapids, Iowa, to
Portland, Oregon. Since CRST pays its team drivers for one half
of the total miles on a trip, Montoya was paid for 935.5 miles.
At $0.25 per mile, this trip paid Montoya $233.88. He also
received a signing bonus of $100, resulting in a total wage of
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B. Procedural history
Montoya filed suit against CRST in January 2016 on
behalf of himself and others who had participated in CRST's
driver training program.8 Montoya claimed, in relevant part,
that CRST's compensation policies violate the Fair Labor
Standards Act, 29 U.S.C. §§ 201-219, because CRST does not pay
its drivers for hours spent in the sleeper berth that exceed the
DOL's excludable eight-hour sleeping period, and thus does not
meet the hourly minimum wage required by the FLSA. Montoya
moved for summary judgment on this claim. Basing its decision
largely on its interpretation of the DOL regulations, the United
States District Court for the District of Massachusetts found
$333.88. Montoya's payroll statement reflects that he worked a
total of 33 hours during this pay period, per CRST's definition
of what constitutes hours worked. Montoya also logged 15.61
hours of "excess sleeper berth time" during this period, meaning
time exceeding eight hours per day spent in the sleeper berth.
If the excess sleeper berth time is not included when
calculating Montoya's hourly pay, he received an hourly wage of
$10.12 ($333.88/33 hours). If the excess sleeper berth time is
included, Montoya received an hourly wage of $6.87
($333.88/48.61 hours). The applicable minimum wage is $7.25 per
hour. 29 U.S.C. § 206.
Although Montoya asserted several claims against CRST,
8
only his claim challenging CRST's compensation for sleeper berth
time is at issue in this appeal. The district court granted
Montoya's motion for certification of a collective action on
that claim pursuant to 29 U.S.C. § 216(b). See Montoya v. CRST
Expedited, Inc., 311 F. Supp. 3d 411, 419-27 (D. Mass. 2018).
The district court defined the class as "all individuals who
have participated as contract drivers in any phase of CRST's
Driver Training Program, at any time since December 22, 2013."
Id. at 414-22.
- 9 -
that drivers' sleeper berth time exceeding eight hours is
compensable under the FLSA. Montoya v. CRST Expedited, Inc.,
404 F. Supp. 3d 364, 393-95 (D. Mass. 2019). Thus, the court
concluded, the additional sleeper berth time must be included
when calculating whether CRST pays its drivers an hourly wage
that meets the minimum wage requirements under the FLSA. See
id. CRST appealed the summary judgment for Montoya.9
II.
We review the district court's grant of summary
judgment de novo. Giguere v. Port Res. Inc., 927 F.3d 43, 47
(1st Cir. 2019). Summary judgment is proper when there is "no
genuine dispute as to any material fact" and the movant is
"entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a).
The parties do not dispute any of the facts pertinent
to the sleeper berth claim as laid out above. Rather, they
disagree as to whether sleeper berth time exceeding eight hours
per day is compensable work under the FLSA.
CRST filed a notice of appeal after the district court
9
issued a separate and final judgment on the sleeper berth claim
and subsequently filed a second notice of appeal after the court
entered final judgment on the remaining claims. While there was
some initial dispute about the timeliness of CRST's notices of
appeal, we allowed the matter to proceed and granted the
parties' joint motion to consolidate the two notices of appeal,
thereby resolving the timeliness question. As noted, CRST has
appealed only from the district court's summary judgment for
Montoya on the sleeper berth claim.
- 10 -
A. Compensable Work Under the FLSA
1. The Legal Framework
The FLSA currently requires employers to compensate
employees for each hour of work at a rate of at least $7.25 an
hour. 29 U.S.C. § 206(a). Although Congress has never defined
what constitutes "work" under the FLSA, the Supreme Court, in
dealing with FLSA cases, has described work as "physical or
mental exertion (whether burdensome or not) controlled or
required by the employer and pursued necessarily and primarily
for the benefit of the employer and his business." Tenn. Coal,
Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598
(1944). In subsequent cases, the Supreme Court has clarified
that this "exertion" can be negligible, as "an employer, if he
chooses, may hire a man to do nothing, or to do nothing but wait
for something to happen." Armour & Co. v. Wantock, 323 U.S.
126, 133 (1944). In cases involving waiting, the critical
question is whether an employee is "engaged to wait" (which is
generally compensable) or "wait[ing] to be engaged" (which is
noncompensable). Skidmore v. Swift & Co., 323 U.S. 134, 137
(1944). To answer this question and thereby determine whether
an employee's time is compensable under the FLSA, we apply what
other circuits have dubbed the "predominant benefit test":
employee time is compensable work when this "time is spent
predominantly for the employer's benefit," which "is a question
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dependent upon all the circumstances of the case." Armour, 323
U.S. at 133; Singh v. City of New York, 524 F.3d 361, 367-69 (2d
Cir. 2008) (applying the "predominant-benefit test"); Roy v.
County of Lexington. 141 F.3d 533, 544-45 (4th Cir. 1998)
(same).
Circuit courts have applied the predominant benefit
test to determine whether employee time is compensable work in a
variety of circumstances, including on-call time, mealtime, and
commuting time.10 In so doing, they have identified useful
factors to guide our analysis of whether "time is spent
We note that the parties have not identified, nor have we
10
found, any published circuit court decisions addressing whether
sleeper berth time constitutes compensable work for the purposes
of the FLSA. Indeed, the Ninth Circuit appears to be the sole
federal appellate court that has contemplated this question, but
the resulting unpublished opinion concludes in a single sentence
that sleeper berth time is non-compensable, with little analysis
of the applicable legal standard or the circumstances of the
case. See Nance v. May Trucking Co., 685 Fed. App'x 602, 605
(9th Cir. 2017) ("Reviewing de novo, . . . we affirm because the
district court properly relied on the persuasive authority of
federal and state regulations saying drivers are not entitled to
compensation for time they are permitted to sleep in the berths
of moving trucks.").
In a similar vein, we note that some district courts have
addressed whether sleeper berth time is compensable under the
FLSA. See, e.g., Roberts v. TransAm Trucking, Inc., 2023 WL
6376756 (D. Kan. Sept. 29, 2023); Haworth v. New Prime, Inc.,
448 F. Supp. 3d 1060 (W.D. Mo. 2020); Julian v. Swift Transp.
Co. Inc., 360 F. Supp. 3d 932 (D. Ariz. 2018); Browne v. P.A.M.
Transp., Inc., No. 5:16-CV-5366, 2018 WL 5118449 (W.D. Ark. Oct.
19, 2018). These decisions have addressed the issue under
differing procedural postures -- for example, in the context of
class certification -- and have reached varying conclusions.
Accordingly, we focus our analysis on the treatment of analogous
issues by circuit courts.
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predominantly for the employer's benefit." Armour, 323 U.S. at
133. Physical location is one such factor. Although we have
not previously engaged with the predominant benefit test, we
have recognized the "FLSA's usual rule . . . that an employer
must pay an employee for all time the employee is required to
spend at a worksite."11 Giguere, 927 F.3d at 47. Other courts
have incorporated this "usual rule" into their application of
the predominant benefit test in on-call cases, determining that
the employee's physical location and ability to leave that
location are important factors to consider when applying the
test. See, e.g., Rapp v. Network of Cmty. Options, Inc., 3
F.4th 1084, 1087 (8th Cir. 2021) (explaining that factors "[t]o
determine whether on-duty waiting or sleeping time is working
time" include "whether [the employee] is required to remain on
or about the premises during such time"); Rutlin v. Prime
Succession, Inc., 220 F.3d 737, 744 (6th Cir. 2000) (determining
that an employee was working even though he was at home for the
In Giguere, we determined that an organization running
11
group homes for adults with developmental disabilities violated
the FLSA when it did not compensate residential employees for
overnight time spent on the employer's premises, a question that
turned on the DOL's guidance outlining the parameters of the
"workweek" for employees who "reside[] on the employer's
premises." Giguere, 927 F.3d at 47-48. While we did not apply
the predominant benefit test in that situation, our recognition
of the FLSA's foundational rule (that an employer must pay an
employee for all time the employee is required to spend at a
worksite) is pertinent here.
- 13 -
on-call period, in part because he had to take landline phone
calls and thus could not leave home).
The employee's ability to leave the workplace has also
proved an important factor in mealtime cases. For instance, the
Fourth Circuit -- applying the predominate benefit test -- found
that medical employees' mealtimes were not for the employer's
predominant benefit, and therefore not compensable work, when
the employee could leave the workplace for the meal and was not
interrupted during that time. See Roy, 141 F.3d at 544-46.
An employee's ability to engage in personal activities
during the contested time also informs whether the time is
predominantly for the employer's benefit. The employee's
ability to use his time for recreational purposes may suggest
that he is waiting to be engaged, but this determination depends
on the degree of freedom with which the employee can pursue
leisure activities and whether he can spend time "in the ways
the [employee] would have chosen had [he] been free to do so."
Skidmore, 323 U.S. at 139. Hence, the Supreme Court found in
Armour that firefighters who were required to spend on-call time
in the fire hall, where they had to respond to alarms and
perform minor maintenance work but could otherwise engage in
recreational activities such as playing cards and listening to
the radio, were engaged in compensable work under the FLSA
because their waiting time was for the employer's benefit.
- 14 -
Armour, 323 U.S. at 132-34. Conversely, the Eleventh Circuit
determined that on-call police officers who could remain at home
or travel so long as they had a beeper were not entitled to
compensation, as the employees "could do anything they normally
did so long as they were able to respond to a call promptly" and
the time was therefore "not used predominantly for the
employer's benefit." Birdwell v. City of Gadsden, 970 F.2d 802,
808-10 (11th Cir. 1992).
Courts also assess the burden on the employee when
determining whether employee time is for the employer's benefit.
Applying the predominant benefit test in the context of
commuting, the Second Circuit determined that an employee's
commute was not compensable work because the only work-related
activity that the employee had to perform during the commute was
to carry a briefcase of materials with him. See Singh, 524 F.3d
at 368-69. The additional time and effort that this activity
required of the employee presented such a "minimal burden" that
the court concluded "the [employer] is [not] the predominant
beneficiary of this time." Id.The DOL's own regulations interpreting the FLSA build
on the standards for compensable work outlined in the above
jurisprudence. Citing Skidmore, the DOL explains that an
employee between assignments who "is unable to use the time
effectively for his own purposes" is working, because the time
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"belongs to and is controlled by the employer" and thus the
employee is "engaged to wait." 29 C.F.R. § 785.15 (citing
Skidmore, 323 U.S. at 137). An employee who is "completely
relieved from duty," however, is not working. 29 C.F.R.
§ 785.16. With respect to truck drivers, the DOL explains that
a driver is relieved from duty when, for example, he has a six-
hour layover between delivering goods and waiting for his next
shipment to be loaded, provided he can leave the worksite and
does not have to take care of the truck during this time. See
id. (citing Skidmore, 323 U.S. at 137).
2. Sleeper Berth Time
We turn to the application of this "predominant
benefit test" to the sleeper berth time in the present case.
CRST argues that none of the time that team drivers spend in the
sleeper berth should be considered work under the FLSA because
the drivers are "waiting to be engaged" during that time and
thus their time is their own. In urging us to reach this
conclusion, CRST observes that drivers can sleep, fix meals,
watch television, and access the internet while in the sleeper
berth. Further, CRST contends that because the driving teammate
is responsible for all work-related duties while the non-driving
teammate rests, and because CRST employs its drivers to drive,
not to rest, the sleeper berth time is primarily for the
employee's benefit. Finally, CRST argues that the
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classification of the sleeper berth time as off-duty time by the
DOT regulations renders it non-compensable under the FLSA.
Montoya, on the other hand, claims that drivers'
confinement to the restrictive environment of the sleeper berth
means that such time predominantly benefits the employer, and
thus is compensable work. Moreover, he underscores that CRST's
team-driving business model relies on, and profits substantially
from, drivers continuing to travel while taking their rest
period, rendering this time for the employer's benefit.
To assess these competing claims, we turn first to
CRST's regulatory argument. It is true, as CRST asserts, that
the DOT's Hours of Service regulations require drivers to be
"relieved from work and all responsibility for performing work"
during the ten-hour "off-duty" period and specifically exclude
"time spent resting in a sleeper berth" from "[o]n-duty time."
49 C.F.R. § 395.2. CRST's reliance on the DOT regulations to
determine what constitutes compensable work is misplaced,
however. The DOT regulations concern driver and road safety
and, unlike the FLSA, do not address worker compensation.
Compare Hours of Service of Drivers, 65 Fed. Reg. 25540, 25540
(proposed May 2, 2000) (noting that the Hours of Service
regulations concern drivers' resting time to "reduce the risk of
drivers operating commercial motor vehicles (CMVs) while drowsy,
tired, or fatigued [and] to reduce crashes involving these
- 17 -
drivers") with 29 U.S.C. § 206 (establishing the minimum wage).
The DOT's road safety regulations are thus of little help in
determining what constitutes compensable working time under the
FLSA.
Indeed, the DOT itself has recognized that using DOT
classifications of "off-duty" time to guide issues of
compensability is misplaced and can result in employers
circumventing the FLSA's requirements. See Hours of Service of
Drivers, 65 Fed. Reg. at 25564-65 (noting that "motor carriers
generally have relied upon the [DOT regulations] under 49 CFR
part 395 . . . to calculate the minimum wage required to be paid
to the driver for each workweek. . . . [S]ome motor carriers
that have not understood the difference [between DOT and DOL
regulations] may miscalculate the minimum wage, placing the
motor carrier in violation of the FLSA.").12 We thus reject
CRST's invitation to interpret the FLSA using the DOT
regulations and turn to the application of the predominant
benefit test.
First, the drivers' confinement to the restricted
environment of their workplace suggests that such time is for
CRST's benefit. As the parties acknowledge, drivers spend the
12 The DOL regulations in question, which we turn to below,
were promulgated pursuant to the FLSA and provide guidance on
employee compensation. See 29 C.F.R. § 785.1 (noting that the
DOL regulations outline "the principles involved in determining
what constitutes working time" under the FLSA).
- 18 -
vast majority of their time not spent driving in the sleeper
berth of a moving truck. They remain at their place of work,
with their freedom of movement severely curtailed, throughout
the sleeper berth time, regularly spending ten, twelve, and even
sixteen hours in the confines of this small space. The drivers
can leave the workplace only when the truck stops,
distinguishing this case from many of the contexts that other
circuits have considered. See, e.g., Birdwell, 970 F.2d at 808-
10 (emphasizing that employees were free to leave the worksite
to engage in personal pursuits during the time at issue); Rapp,
3 F.4th at 1087 (same); Roy, 141 F.3d at 545-46 (same).
Although CRST recognizes that employees are confined
to the sleeper berth, it repeatedly emphasizes that the drivers
may use the sleeper berth time for personal activities such as
eating, watching movies, and connecting to the internet, making
such time predominantly for the drivers' benefit. Somewhat
implausibly, CRST contends that drivers can do "anything . . .
they [have] a mind to do" during their sleeper berth time.
CRST's argument turns a blind eye to the limitations
inherent in the drivers' physical location. Though drivers may
be able to engage in some leisure activities, the nature of
these activities is restricted by the drivers' presence in the
sleeper berth of a moving truck -- a small space, containing
only some basic living essentials, that drivers cannot leave
- 19 -
until the truck stops moving. The minimum height of the sleeper
berth is a mere 24 inches as measured from the top of the
mattress installed in the berth, see 49 C.F.R. § 393.76(a)(1),
meaning that drivers may struggle to stand or even sit up in bed
in the sleeper berth. The driver in the sleeper berth is also
in constant proximity to the noise of the truck's engine,
further reducing drivers' ability to sleep, relax, or engage in
leisure activities of their choice. In short, CRST's argument
that the drivers' time is their own because they can use it as
they wish is unpersuasive considering the drivers' physical
confinement in a restrictive space that is ill-equipped for many
activities.
Moreover, CRST's argument overlooks the Supreme
Court's jurisprudence establishing that the ability to engage in
some leisure activities does not, in and of itself, render an
employee's time for the employee's own benefit. In Armour, the
Court found that the employee firefighters' time benefited the
employer and was compensable work even though they could play
cards, listen to the radio, or eat while waiting for the next
alarm. Armour, 323 U.S. at 132-34. As the Court explained, the
time did not become the employee's own "merely because the
nature of the duty left time hanging heavy on the employees'
hands and because the employer and employee cooperated in trying
to make the confinement and idleness incident to it more
- 20 -
tolerable." Id. at 134. Similarly, here, the drivers' time is
not their own merely because they can pass the time spent in the
sleeper-berth by watching a movie or surfing the internet,
activities that are the modern-day equivalents of cards and the
radio.
The fact that the drivers are typically traveling
during time spent in the sleeper berth also suggests that such
time is for CRST's benefit, given the importance of continuous
travel to CRST's business. CRST's team driving approach,
requiring drivers to trade on and off their driving and non-
driving times until they arrive at their destination, allows
CRST's trucks to remain in near continuous motion while
complying with DOT regulations limiting drivers' hours behind
the wheel. CRST benefits enormously from the team driving model
as the company makes its deliveries in approximately half the
time that it would take a solo driver to complete the same trip.
Indeed, CRST understands the necessity of drivers' sleeper berth
time to the company's bottom line, explaining that its team
driving model allows it to "get twice the utilization out of the
truck and keep that cargo moving . . . twenty hours a day or
more." Such speed of travel is made possible only by the
resting driver resetting their driving hours in the sleeper
berth while their teammate continues to drive.
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Finally, we consider whether time spent in the sleeper
berth burdens the driver confined therein. While the record
does not contain examples of drivers' sleeper berth time being
interrupted for work, the nature of the team driving setup means
that the driving teammate may call on the resting teammate to
provide emergency assistance, even during the mandated ten-hour
period defined as "off-duty" by the DOT regulations. See 49
C.F.R. § 395.1(b)(2) (providing that, in "emergency conditions,"
a driver may complete the shipment even if the driving time
falls outside of the maximum driving time "without being in
violation of the provisions of the regulations"). The
discomfort of being confined in a small and noisy space, as well
as the possibility of interruptions, suggest that the sleeper
berth time presents more than a "minimal burden" on drivers.
See Singh, 524 F.3d at 368. Considering the restrictions that
sleeper berth time places on drivers and its centrality to
CRST's team driving model, we conclude that such time
predominantly benefits the employer.
B. The DOL Regulations
As a general matter, time that predominantly benefits
the employer is compensable work under the FLSA, absent an
exception to compensability provided for in the statute or DOL
regulations. See Tenn. Coal, Iron & R.R. Co., 321 U.S. at 602
(stating that the FLSA "guarantee[s] compensation" for all hours
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worked); Armour, 323 U.S. at 134 (stating that the act provides
for some "exclu[sions]" from working time).13 We therefore turn
to the application of the DOL regulations to this dispute. At
the heart of the parties' dispute are two regulations governing
sleep time: 29 C.F.R. § 785.22 and 29 C.F.R. § 785.41. Section
785.22(a) reads, in pertinent part:
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 . . . . If [the] sleeping
period is of more than 8 hours, only 8 hours
will be credited.
Section 785.41 reads:
Any work which an employee is required to
perform while traveling must, of course, be
13 In applying the predominant benefit test and upholding
the general principle that employers must pay employees for
hours worked, circuit courts have recognized that both statutory
and regulatory provisions identify some exceptions to
compensability for otherwise compensable work. See, e.g.,
Birdwell, 970 F.2d at 804 (explaining that, "[i]n general,
employers are required to pay employees . . . for hours worked"
but recognizing that, in the case of some overtime hours, the
FLSA provides "an exception to this rule" depending on a number
of factors enumerated in the statute); Gelber, 14 F.4th at 1280-
86 (noting that the predominant benefit test "governs the
general question [of] whether time spent is compensable work,"
but recognizing that the DOL regulations provide that an
employer may "deduct meal breaks" from an employee's "otherwise
compensable" time in certain circumstances); Singh, 524 F.3d at
367-68 (explaining that "whether an employee's expenditure of
time is considered work under the FLSA turns in part on whether
that time is spent predominantly for the benefit of the
employer," but recognizing that some statutory and regulatory
provisions "exempt[] employers from compensating employees" for
certain activities).
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counted as hours worked. An employee who
drives a truck . . . or an employee who is
required to ride therein as an assistant or
helper, is working while riding, except
. . . when he is permitted to sleep in
adequate facilities furnished by the
employer.
Montoya does not dispute that CRST can deduct an
eight-hour sleeping period from drivers' compensable hours, nor
does he challenge the adequacy of the sleeping facilities. The
sole dispute between the parties is whether, under these
regulations, CRST can deduct time drivers spend in the sleeper
berth beyond the eight-hour exception set forth in § 785.22 from
drivers' compensable work.
CRST argues that § 785.41 is the only applicable
regulation. In urging us to ignore § 785.22 entirely, CRST
argues that employees are not "on duty for 24 hours or more"
because they are not working during the time spent in the
sleeper berth and, per DOT regulations, drivers are only "on
duty" for shifts of 14 hours or less. CRST therefore contends
that § 785.41 alone applies, and the plain text of the
regulation compels us to conclude that employers can deduct any
amount of time that an employee is confined to the sleeper berth
from compensable hours, because the employee is "permitted to
sleep in adequate facilities" during such time.
Montoya counters that both sections 785.22 and 785.41
apply because drivers are working when they are in the sleeper
- 24 -
berth and are therefore "on duty" for twenty-four hours or more,
as that concept is defined by DOL regulations that, unlike the
DOT regulations, construe the FLSA. See 29 C.F.R. § 785.15 (an
employee is "engaged to wait" and thus "[o]n duty" when he is
"unable to use [his] time effectively for his own purposes,"
because it "belongs to and is controlled by the employer").
Reading sections 785.22 and 785.41 together, Montoya argues that
CRST can deduct a period of sleep time from drivers' compensable
hours, but that this sleeping period can be no more than eight
hours. Thus, Montoya argues, CRST must compensate drivers for
all sleeper berth time extending beyond the eight-hour sleeping
period.
1. The Legal Framework for Applying the Regulations
We review administrative regulations in the broader
context of the statutory and regulatory scheme. See, e.g.,
Anversa v. Partners Healthcare Sys., Inc., 835 F.3d 167, 169-72
(1st Cir. 2016) (outlining in detail the relevant statutory and
regulatory scheme to contextualize the regulation at issue);
Charles H. Koch, Jr. & Richard Murphy, 3 Admin. L. & Prac.
§ 10:51 (3d ed., 2023) (noting that courts should review
regulations in context). In so doing, we "construe a regulation
in light of the congressional objectives of its underlying
statute." United States v. Lachman, 387 F.3d 42, 52 (1st Cir.
2004). It is well established that the underlying statute here,
- 25 -
the FLSA, was designed to protect workers' living standards and
health by guaranteeing adequate compensation, and the DOL's
regulations provide guidance to employers in upholding the
protections of the FLSA. See 29 U.S.C. § 202(a) (noting that
Congress sought to guard against "labor conditions detrimental
to the maintenance of the minimum standard of living necessary
for health, efficiency, and general well-being of workers"); 29
C.F.R. § 785.1 (noting that the regulations outline "the
principles involved in determining what constitutes working
time" under the FLSA).
When reading the regulations against this statutory
background, we do not give force to one phrase in isolation.
See Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 321 (2014)
(noting that reading a provision in context may produce a
different meaning than reading a provision in isolation); Jette
v. United of Omaha Life Ins. Co., 18 F.4th 18, 28 (1st Cir.
2021) (explaining that we "construe the regulation in light of
its chosen 'language . . . , the specific context in which that
language is used, and the broader context of the [regulation] as
a whole'" (quoting In re Fin. Oversight & Mgmt. Bd. for P.R.,
919 F.3d 121, 128 (1st Cir. 2019))). Rather, we must read a
body of regulations in harmony, avoiding conflict between
provisions and "giving effect, when possible, to all
- 26 -
provisions." McCuin v. Sec'y of Health & Hum. Servs., 817 F.2d
161, 168 (1st Cir. 1987).
2. Application of the Regulations
We first consider whether § 785.22 applies to the
facts before us. Section 785.22 deals with sleeping time and
specifies that when employees are "required to be on duty for 24
hours or more, the employer may exclude a sleeping period of not
more than eight hours." We understand CRST to argue that
§ 785.22 does not apply to its drivers because they are not "on
duty for 24 hours or more." CRST contends that its drivers work
for only fourteen hours at a time because that is the maximum
number of hours that the DOT's regulations permit a driver to be
"on duty," as the term is used in the DOT regulations, before
taking a rest period in the sleeper berth, which CRST argues is
not compensable work. However, our predominant benefit test
analysis necessarily informs our application of § 785.22. As we
have explained in Part II.A, the sleeper berth time is for the
benefit of the employer and therefore constitutes 'on duty'
time, as that term is set forth in 29 C.F.R. § 785.15 and used
in 29 C.F.R. § 785.22. Since CRST's drivers are "on duty," for
purposes of the FLSA, when in the sleeper berth, and may spend
more than 24 consecutive hours either in the sleeper berth or
driving and performing other work tasks, team drivers are "on
- 27 -
duty" for periods of twenty-four hours or more. Section 785.22
thus applies.
The question then becomes how we read § 785.22 with
§ 785.41, given the statutory and regulatory context and the
facts before us. Section 785.41 deals with travel time and
specifies that employees who perform work while driving or
riding in a truck are "working while riding, except . . . when
[they are] permitted to sleep in adequate facilities furnished
by the employer." CRST's argument would have us read into
§ 785.41 an exception to the sleeping-time cap of § 785.22 for
employees who work while traveling, but it fails to offer a
rationale to explain why the DOL would have created such an
exception. Rather, the better reading of the regulations is
that they work together: § 785.41 provides that employees who
work while traveling in a truck are "working while riding"
except during a sleeping period. Section 785.22 provides that
such a sleeping period is non-compensable, but only for a
maximum of eight hours.14 This reading gives effect to the
language of both regulatory provisions and is consistent with
the overarching statutory and regulatory framework protecting
employees from exploitative compensatory practices. See 29
It is immaterial whether the remaining sleeper berth time
14
is part of the drivers' DOT-required ten-hour "off-duty" period.
As explained above, all such time is compensable work under the
FLSA and the DOT definitions of time do not affect
compensability.
- 28 -
U.S.C. § 202(a); Giguere, 927 F.3d at 50 (acknowledging the
FLSA's remedial purposes and protective policy objectives).
CRST's reading of § 785.41, which forecloses
compensation for any hours that the driver spends in the sleeper
berth, contradicts these protective principles. Taken to its
logical conclusion, CRST's reading of § 785.41 would permit
employers to avoid compensating drivers by confining them to the
sleeper berth for an unlimited number of hours simply because
that is time in which they are "permitted to sleep," even though
-- as CRST acknowledged in a deposition -- it is unreasonable to
propose that a driver would be sleeping for the ten or more
hours per day spent in the sleeper berth.15
Moreover, CRST's reading of § 785.41 would have us
reject the predominant-benefit test that Supreme Court
precedents require us to apply. See Armour, 323 U.S. at 133(explaining that "time [that] is spent predominantly for the
employer's benefit" is working time); 29 U.S.C. § 206(a)
(guaranteeing compensation for working time)."
For a similar reason, CRST's argument that § 785.41 is
a specific regulatory provision that trumps the more general
15 Charles Haffenden, a former CRST vice president,
recognized in a July 2017 deposition that it would be hard for a
person to spend more than ten hours per day sleeping, saying: "I
find it personally hard to sleep more than about seven hours at
a stretch. . . . I don't know anybody that could spend ten
hours in there [sleeping] continuously."
- 29 -
provision of § 785.22 is unpersuasive. CRST is correct that
when a specific provision of a regulation conflicts with a
general one, the specific provision ordinarily governs. See
Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 43 (1st Cir. 2010);
cf. Edmond v. United States, 520 U.S. 651, 657 (1997)
("Ordinarily, where a specific provision conflicts with a
general one, the specific governs."). But here, even if we were
to characterize the regulations in the way CRST argues,16 the two
provisions are not in conflict with one another. Indeed, they
must be read harmoniously to avoid direct contradiction with
each other and with the outcome of our application of the
predominant benefit test. Since the caselaw informs our
understanding of the regulations -- notably, as we have
explained, our understanding of whether the drivers are "on duty
for 24 hours or more" for the purposes of § 785.22(a) -- we
cannot adopt a reading of the regulations that is irreconcilable
with the background law.
3. Wage and Hour Division Opinion Letters
As a final matter, we address opinion letters from the
DOL's Wage and Hour Division ("WHD") that both parties invoke to
16CRST argues that § 785.22 is a general provision
governing sleep time and § 785.41 is a "truck-driving specific"
provision. In response, Montoya argues that § 785.41 is no more
specific than § 785.22, as the two provisions address different
issues -- § 785.22 concerns compensation for sleep and meal
periods, and § 785.41 concerns compensation for all employees
who work while traveling.
- 30 -
support their differing interpretations of the regulations. To
the extent that CRST asks us to defer to one such letter from
2019 -- which, as discussed below, rescinded earlier letters and
opined that sleeper berth time is non-compensable, but which the
agency states no longer represents the agency's views -- we may
do so only to the extent that the letter is persuasive based on
the factors outlined by the Supreme Court in Skidmore, 323 U.S.
at 140. The "mix of factors" we consider to gauge
persuasiveness includes "the thoroughness evident in [the
agency's] consideration, the validity of its reasoning, [and
the] consistency [of its interpretation] with earlier and later
pronouncements." Merrimon v. Unum Life Ins. Co. of Am., 758
F.3d 46, 55 (1st Cir. 2014) (alterations in original) (quoting
Doe v. Leavitt, 552 F.3d 75, 81 (1st Cir. 2009)). The validity
of the agency's reasoning is the "most salient . . . factor[]"
in gauging persuasiveness. Id. (quoting Doe, 552 F.3d at 82).
Since the 1960s, the WHD has published at least five
opinion letters clarifying that the DOL regulations require
employers to compensate employees for sleeper berth time
exceeding eight hours. See U.S. Dep't of Labor, Wage & Hour
Div., Opinion Letter FLSA-213 (Jan. 6, 1964); U.S. Dep't of
Labor, Wage & Hour Div., Opinion Letter FLSA-214 (Feb. 17,
1964); U.S. Dep't of Labor, Wage & Hour Div., Opinion Letter
FLSA-235 (Nov. 18, 1966); U.S. Dep't of Labor, Wage & Hour Div.,
- 31 -
Opinion Letter SCA-117 (Apr. 26, 1978); U.S. Dep't of Labor,
Wage & Hour Div., Opinion Letter SCA-118 (June 22, 1979). These
letters, and the Secretary of Labor's briefing in this
litigation, explicitly state that § 785.22 and § 785.41 are
consistent with one another, "must be read together," and that,
therefore, "a maximum of 8 hours per day of sleeper berth time
is excludable from hours worked for on-duty periods of 24 hours
or more."
In support of its position that we should look only to
§ 785.41, CRST asks us to defer instead to one short-lived 2019
opinion letter. In that one letter, the WHD rescinded its five
prior letters and adopted the new position that, under § 785.41,
"the time drivers are relieved of all duties and permitted to
sleep in a sleeper berth is presumptively non-working time that
is not compensable" because the prior interpretation was
"unnecessarily burdensome for employers." U.S. Dep't of Labor,
Wage & Hour Div., Opinion Letter FLSA2019-10 at 3 (Jul. 22,
2019). The WHD then withdrew the 2019 letter on February 19,
2021, explaining that it was "inconsistent with longstanding WHD
interpretations regarding the compensability of time spent in a
truck's sleeper berth." U.S. Dep't of Labor, Wage & Hour Div.,
Opinion Letter Search (FLSA2019-10), available at
https://www.dol.gov/agencies/whd/opinion-letters/search (last
- 32 -
visited Sep. 14, 2023). The WHD also reinstated the previously
withdrawn opinion letters. See id.
In arguing for deference to the 2019 opinion letter,
CRST claims that it accurately represents the DOL's pre-1960s
guidance on the compensability of sleeper berth time and thus
returns the DOL's interpretation of the regulations to its
original meaning. In support of this argument, CRST points to a
1943 WHD press release stating that "[t]ruck drivers riding in
the trucks' sleeping berths while the relief driver is at the
wheel need not be compensated," U.S. Dep't of Labor, Press
Release R-1933, Hours Worked in Trucking Clarified (Feb. 15,
1943), along with a statement in the WHD's 1948 Field Operations
Handbook that "time actually spent in the sleeping berths"
should not be considered "hours worked," U.S. Dep't of Labor,
Field Operations Handbook, Hours Worked, Part 130.41 (1948 ed.,
rev. 1949).
We agree, however, with Montoya and his amici --
including the Secretary of Labor -- that the 2019 opinion letter
is not entitled to deference. That is so for two primary
reasons. First, the letter provides little justification for
its significant departure from the WHD's position of almost
sixty years. Simply stating without more that the WHD's prior
position was "unnecessarily burdensome for employers" does not
evince thoroughness or considered reasoning, especially
- 33 -
considering the policy rationales underscoring the FLSA that
seek to protect employees.
We find similarly unsatisfactory the letter's
conclusory assertion that "WHD disagrees with recent judicial
decisions that have regarded sleeper berth time as on-duty
sleeping time, rather than off-duty travel time," a remark
unadorned by any analysis of the reasoning in those cases or any
explanation for the disagreement. Likewise, the letter provides
no basis for its assertion that it "understands [its
interpretation] to reflect the prevailing practice in the
trucking industry," nor does it cite any legal authority
explaining why that would be a relevant consideration. And the
letter simply declares that the regulatory scheme marks a "clear
distinction between [compensable] on-duty sleep time . . . and
[non-compensable] non-working time when the employer permits the
employee to sleep" without considering whether §§ 785.22 and
785.41 should be read in conjunction, as previous opinion
letters had done, or explaining its refusal to do so.
It is of little import that, as CRST contends, the
2019 letter may reflect WHD guidance on the compensability of
sleeper berth time contained decades ago in pre-1960s WHD
statements, such as the 1943 press release and 1948 handbook.
The DOL regulations at issue here were adopted in 1955,
including the regulations addressing the eight-hour cap on non-
- 34 -
compensable sleeping time, and the adoption of the regulations
explicitly superseded prior opinions put forth by WHD. See U.S.
Dep't of Labor, Wage & Hour Div. Interpretive Bulletin Part 785,
20 Fed. Reg. 9963 (Dec. 24, 1955); U.S. Dep't of Labor, Wage &
Hour Div., Opinion Letter FLSA-214 (Feb. 17, 1964) (explaining
that WHD statements predating the DOL regulations had been
superseded by subsequent guidance).17 Without further reasoning,
the 2019 letter does not support deference to its opinion.
Second, the 2019 letter adopts a position that is
irreconcilable with the previous five WHD letters addressing
this issue. The pre-2019 letters maintain the consistent
position that the maximum number of hours that an employer can
deduct for time spent in the sleeper berth of a truck is eight
hours, and they offer reasoned justification for WHD's position.
For example, the pre-2019 letters explicitly address the
interaction of the regulations on sleeping time with the
regulations on travel. The 1978 letter explains that §§ 785.22
and 785.41 "must be read in conjunction and not as separate
positions regarding sleeping time. As section 785.22 makes
The regulations promulgated in 1955 at 29 C.F.R. Part 785
17
codified and expanded upon earlier guidance. The eight-hour cap
was initially contained in § 785.3(e)(2) and later moved to
§ 785.22, where it remains. See U.S. Dep't of Labor, Wage &
Hour Div., Interpretive Bulletin Part 785, 20 Fed. Reg. 9963,
9965 (Dec. 24, 1955); U.S. Dep't of Labor, Wage & Hour Div.,
Revised Interpretive Bulletin Part 785, 26 Fed. Reg. 190, 193
(Jan. 11, 1961).
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clear, the maximum amount of time for sleeping that can be
deducted from working time where employees are on 24-hour duty
is 8 hours." U.S. Dep't of Labor, Wage & Hour Div., Opinion
Letter SCA-117 (Apr. 26, 1978). In the same vein, the 1979
letter outlines the development of Supreme Court caselaw on the
compensability of waiting time to contextualize the regulations,
before reiterating that "it has long been our position that
section 785.41 must be read in conjunction with section[] . . .
[785].22" and stating that "section 785.41 does not alter the
general rules on sleep time." U.S. Dep't of Labor, Wage & Hour
Div., Opinion Letter SCA-118 (June 22, 1979).18
These pre-2019 letters are consistent internally
-- they represent more than five decades of the same policy --
and consistent with the purpose of the statutory and regulatory
scheme, unlike the irreconcilable and unreasoned 2019 letter.
18 The 1979 opinion letter also endorses the view, not
addressed by the parties, that in an on-duty period extending
beyond 24 hours, employers may exclude a maximum of one
additional hour of sleep time for each hour on duty beyond 40
hours, such that a driver must have been on duty for 48 hours
for an employer to deduct sixteen total sleeping hours from
compensation (and, presumably, applying the same pattern for
each subsequent 24-hour period). As we explain, we agree with
the Department of Labor's underlying premise that a driver's
sleeper berth time is compensable "on-duty" time, and we do not
pass on here the Department's assessment of how to calculate
additional periods of excludable sleep time beyond the initial
24-hour period.
- 36 -
As such, the pre-2019 letters are entitled to respect.19 We
therefore read § 785.22 with § 785.41 to conclude that the
eight-hour cap applies to time spent riding in the sleeper
berth.
III.
Based on our application of the predominant benefit
test and the DOL regulations at issue, we hold that employees'
time spent in the sleeper berth that exceeds eight hours per day
is compensable work under the FLSA. We therefore affirm the
district court's grant of summary judgment for Montoya on this
issue.
So ordered.
19 We also acknowledge that the Secretary of Labor's
briefing in this litigation, advocating for the compensability
of sleeper berth time exceeding eight hours, is consistent with
the DOL regulations and the WHD's longstanding position.
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