The following is a guest blog post by Richard J. Simmons of Sheppard Mullin in Los Angeles. He represents employers in various labor and employment matters.
California law establishes unique rules governing when time spent is compensable “hours worked.” How these rules are applied to travel time is continuing to evolve.
Unlike federal law, under which employees need only be paid for time when they’re “suffered or permitted to work,” California law requires that an employee be paid for time if the employee is either “suffered or permitted to work” or “subject to the control” of the employer. The second standard results in more compensable time under California law than federal law.
A finding that time must be paid as “hours worked” has these consequences:
- It must be paid at no less than the minimum wage, which is currently $12 an hour;
- The time must be added to other work time when determining whether the employer owes overtime and, if so, how much overtime it owes; and
- The employee’s “regular rate of pay” used to calculate overtime pay is computed based on hours worked.
The question of whether time is compensable arises in many contexts, but is particularly challenging when applied to travel time. Ordinarily, commute time to and from work isn’t considered work time and need not be paid. However, the California Supreme Court stated years ago in Morillion v Royal Packing Co. (2000) 22 C4th 575 that employees who are subject to the employer’s control while traveling to a worksite on a company-provided bus are entitled to compensation for the travel time.
The California Supreme Court concluded that the travel time had to be counted as work time because the employees were subject to the employer’s control while riding the bus. In contrast to normal home-to-work travel time, during which employees can drop their kids off for childcare or visit a store, traveling on a company-provided bus that picks employees up at a designated location and drives them to a worksite doesn’t give employees that freedom.
The travel time issue recently surfaced in an intriguing court of appeal case. In Hernandez v Pacific Bell Tel. Co. (2018) 29 CA5th 131, the employer offered an optional program that allowed certain employees to voluntarily choose to drive a company vehicle home at the end of each workday. Some of the vehicles contained equipment used in the performance of the employees’ jobs. The court concluded that the employees weren’t subject to the employer’s control or “suffered or permitted to work;” thus this driving time wasn’t compensable work time.
The Hernandez court paid close attention to the fact that employees transported equipment when driving the vehicles to and from work. It observed that the transportation of the equipment didn’t require additional effort or extra time; rather, it was incidental to driving the company’s vehicles. If the standard were otherwise, the court indicated that commutes of police officers who carry guns, employees who carry badges, and employees who carry a briefcase filled with work documents or an electronic device to access work emails to and from work would need to be compensated.
The Hernandez case is very instructive and contributes significantly to the clarification of the wage and hour field. It clarifies the application of the “hours worked” standards to cases in which employees voluntarily take employer-owned vehicles to and from home and the first and last locations of the day and transport equipment along with the vehicles.
Issues around compensable time are discussed in the 2019 edition of the Wage and Hour Manual for California Employers, which will now be available through the new CEB and Simmons Employment Law Library. This new library features invaluable best practices, commentary, practice advice, sample documents, and more.
Other CEBblog™ posts you may find interesting:
- Can Employers Control How Employees Take Vacation?
- Employees Are Entitled to Rest
- Watch Out for Probationary Employees Getting Implied Contract Rights
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