Attention Truckers: You’re Not Always On The Clock When You’re In the Sleeper Berth

By Michael GrossmanOctober 15, 2015Reading Time: 6 minutes

When an trucker is injured while in the sleeper berth of his rig, he may have an injury lawsuit on his hands, not a workers' comp claim.

In most instances, when an employee is injured on the job, their losses (wages, medical bills, etc.) are covered by a worker's compensation plan, meaning they file a type of administrative claim in order to receive predetermined (and often minimal) benefits, rather than file a traditional lawsuit. Furthermore, workers' comp is a no-fault system that replaces the ordinary right to sue the person responsible for one's injuries with a type of work injury benefit scheme. If a worker is injured on the job while working for a company who participates in a workers' comp plan, they are more or less guaranteed compensation for their injuries. However, the compensation they get isn't very good when compared with what they could receive if they sued the employer and won in court.

But therein lies the rub. The real benefit employers derive from workers' comp coverage isn't a financial safety net for employees, but immunity from most lawsuits. In essence, their choice (and it's only a choice in Texas, as every other state requires coverage) to participate in the workers' comp system says to workers, "Normally, you could sue me for your work injury, but here are some minimal no fault benefits instead."

If you disregard the dubious constitutionality of some states' workers' comp systems, losing one's right to sue in exchange for what basically amounts to work injury welfare isn't always a bad deal. For instance, when the injury is minor or when the accident was no one's fault (as with an injury caused by an act of God) the security provided by a no-fault benefits system can be quite comforting to injured workers.

However, when an employer or fellow worker hurts someone through carelessness, or when the injuries are severe enough that the limited compensation provided through workers' comp benefits doesn't come close to covering the employee's losses, there is something very wrong with the notion that the injured worker cannot sue and must instead accept a substantial part of the cost for an injury that they didn't cause. Without the ability to sue, the injured worker will never get fair compensation, and his employer can shield themselves from a lawsuit by participating in a workers' comp plan. Making matters worse for workers, without the fear of being sued, many employers have no incentive to follow the rules and provide their workers with a safe work environment.

But it's not as simple as "if the employer has workers' comp coverage, the injured worker can't sue; if the employer doesn't have workers' comp coverage, the injured worker can sue." You see, sometimes an employee can work for a company that has workers' comp coverage, and get hurt by a co-worker, yet still not be covered by workers' comp coverage.

In an ironic twist, in some states, the very mechanism that employers use to dodge paying out on a workers' compensation claim enables truck drivers who are injured while off the clock to sue their employers. I refer to a workers' comp defense that argues that an employee was not in the course and scope of employment at the time of accident. The definition of the course and scope of employment varies from state to state, but a general rule of thumb is that an employee is on the job (and covered by workers' comp) when they're clocked in and doing their job.

How workers' comp coverage normally applies to injured truckers.

Workers' comp only applies (and therefore, only shields the company from a lawsuit) when employees are in the course and scope of employment at the time of their injury. This means that if you're on the clock and you're injured, you can't sue. If, however, you're off the clock and you get hurt by your employer, they can't hide behind the lawsuit immunity built into workers' comp coverage.

This fact is of grave concern to truck drivers (more so than to other types of injured workers) because a big part of a trucker's job involves being asleep while their co-driver keeps the rig bustin' bugs down the highway. While this is an area of the law that is not fully fleshed out and reasonable opinions differ, we are of the view that when a trucker is asleep in a sleeper berth and a co-driver acts negligently and hurts them, they are not "in the course and scope of employment," and any injury they sustain should NOT be covered by workers' comp. Instead, we believe they have the right to sue, the same as anyone else on the road who is hurt by their co-driver. To be clear, there's next to no case law for this assertion. To further complicate matters, some state courts may accept this arguments and permit a driver who isn't on the clock to sue, while others don't want the headache that comes with exceptions to workers' comp, and forbid it.

There are most certainly some scenarios were truckers are hurt and workers' comp kicks in, and the injured truckers therefore cannot sue their employer. This is usually the case when there are two truckers in the front of the cab and an accident occurs or when a trucker suffers an injury from lifting heavy cargo. It makes sense for truckers to be covered by workers' comp under these circumstances, since they're doing normal, on-the-clock trucker tasks.

Why then would it make a difference if one of the two drivers is asleep in a sleeper birth and injured in an accident? It may seem like the same situation as when the co-driver is sitting in the passenger seat, but legally, there are times when it is not.

You see, federal law requires truck drivers to be off the clock for certain periods of time under what are known as the hours of service rules. This regulation makes it clear that once you exceed a certain number of hours working as a trucker, you're breaking the law. For the purposes of hours of service regulations, when a driver is sleeping in the sleeper berth of their truck as it's being driven by a co-driver, he is not considered on the clock.

Well, employers shouldn't be able to have it both ways. They can't say, "Hey federal government, he was in the sleeper berth and not on the clock, so we're definitely complying with the law," and then turn right around when such a trucker is injured and say, "Sorry, trucker. Even though you were asleep at the time that your co-driver hurt you, we consider that to be the on the clock, so you can't sue us. Enjoy your insignificant workers' comp benefits." However, that's exactly what many trucking companies do. What's worse, some state courts agree with the trucking companies.

When you're not on the clock, you're not a worker in the eyes of the law that governs hours of service: it's our view that you're no different than if the truck driver picked up a hitch-hiker. If a co-driver is not technically a worker at the time of the accident, then the law should treat them just like any other injured party. That means worker's compensation should not apply and the injured worker should be able to make a negligence claim against the trucking company, just like anyone else. Again, though, the trucking company the injured driver works for is usually all too happy to lead him to believe he may only file a worker's compensation claim, knowing that belief will save them the time and expense of litigation.

This distinction is important, because commercial vehicles have to be insured for at least $1 million in the state of Texas. The potential pool of money available to help the injured co-driver recover from his injuries, both physical and financial, is much larger if he's able to file suit than any amount he could obtain from a standard worker's compensation claim. The cost in raised premiums is also going to be much higher for the company from a liability insurance claim than in a worker's compensation claim, and that's why the company is so eager to mislead the injured driver into thinking that he only has a worker's compensation claim. They're never going to say, "Did you realize that you actually have standing to sue us?"

This theory of the law is not common practice around the industry. As a result, many lawyers won't represent injured truckers in these cases, because they think that the court will see it as a workers' compensation case and dismiss the matter. We disagree. At the very least, a truck driver who is not on the clock at the time of a crash deserves someone to look into their particular case and see whether or not it's possible to pursue their claim, instead of putting themselves at the mercy of whatever meager workers' compensation benefits workers in their state receive.