ATA Joins Walmart In California Sleeper Berth Rehearing Request

A group of trucking interests led by the American Trucking Associations (ATA) is supporting Walmart Inc. WMT in its bid to have an appeals court reconsider a decision awarding $54.6 million to former California truck drivers for time spent in a sleeper berth during layovers between trips.

The amicus brief, filed Jan. 31 in the San Francisco-based U.S. Court of Appeals for the 9th Circuit, includes the ATA along with the California Trucking Association, CRST Expedited Inc. and U.S. Xpress Inc. USX. "All have a strong interest in the outcome of this case, which has major implications for the treatment of time that drivers spend off-duty in a truck's sleeper berth under California wage law," according to the brief.

In its petition for an en banc rehearing filed with the 9th Circuit in January, Walmart's attorneys argued that the jury in the lower court was instructed to follow "narrow" language in the retailer's pay manual to determine if it was exercising control over the drivers even during nondriving times. The petition came two weeks after the appeals court's three-judge panel upheld the lower court's decision finding that drivers involved in a class action suit were entitled to back wages under California law.

ATA and its fellow trucking interests argue that the standard of company "control" over drivers created by the appeals court panel that was used to determine that drivers should be compensated under California law "creates an untenable tension" with the off-duty obligations of trucking companies and their drivers under federal hours-of-service (HOS) regulations.

HOS regulations, which prohibit drivers from driving beyond 14 hours of coming on duty until they take a 10-hour off-duty period, do not in and of themselves dictate what portions of a driver's time are compensable, according to the brief. However, they do define off-duty to exclude not only all time in which drivers work, but also when they are merely "attending a commercial vehicle" while others load or unload it or "remaining in attendance upon a disabled vehicle," the trucking industry group notes.

"Thus, as a practical matter, there is little if any daylight between time that is off-duty for federal hours-of-service purposes (where so much as attending the vehicle without performing work renders a driver on-duty) and time that is outside the employer's control (and therefore non-compensable under California law)," they assert. Drivers could not have been required to remain in attendance of their vehicles — as the panel's decision would have it — and at the same time be off-duty for HOS purposes, ATA and its colleagues maintain.

"The decision, in other words, entails the implausible proposition that both Walmart and its drivers have been engaged in an open and pervasive violation of the hours-of-service rules — exposing both the carrier and the drivers themselves to steep liability under the DOT regulations (civil penalties of up to $15,419 for motor carriers and up to $3,855 for drivers for hours-of-service violations) — which has somehow gone unnoticed."

ATA's brief also warned of "far-ranging implications" if a rehearing isn't granted, predicting that it would "usher in a massive new wave of minimum wage litigation," with lower courts struggling to deal with the implications of the ruling.

"Every motor carrier has an obligation — both to the motoring public and to its customers — to impose some conditions on drivers before they go off-duty, such as requiring that the driver park the truck in a safe, secure, and legal location before beginning an off-duty period elsewhere," they state. "No motor carrier would expect that such minor, routine limitations on drivers' ability to unilaterally go off-duty would represent the kind of control that renders the off-duty time compensable."

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