Commute Time May Be Paid for Technicians Carrying Supplies

By Joanne Deschenaux July 29, 2020
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Service technicians who used their personal vehicles to carry employer supplies and tools might be entitled to compensation for time spent driving from their home to their first customer site in the morning and back home from their last customer site in the afternoon, a California appellate court ruled. Although commuting time is usually not considered hours worked, if the employer "controls" the employee's commute, compensation may be required.

Because there were conflicting facts as to how much autonomy the technicians lost due to the requirement that they carry their employer's tools, the trial court erred in dismissing the technicians' wage and hour lawsuit before trial, the appeals court said, sending the case back to the lower court for further proceedings. 

The technicians did not report to an office for work but usually drove from home to the first customer location of the day and back home from the last customer location. The technicians brought a class action seeking wages for this time spent commuting.

The trial court dismissed the action before trial, ruling that the technicians' commute time was not compensable as hours worked under Industrial Welfare Commission Wage Order No. 4, which defines hours worked as "the time during which an employee is subject to the control of an employer."

The technicians appealed.

Applicable Legal Principles

In determining whether the trial court properly found in favor of the employer on the issue of compensability of commute time, the appellate court was guided by the California Supreme Court's ruling in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575.

In Morillion, employees were required to travel to the worksite in employer-paid buses. The California Supreme Court first indicated that commute time to and from work is generally not compensable. Further, if the employer provides optional free transportation to employees, the employer is not obligated to compensate employees for commute time.

On the other hand, compulsory travel time is compensable. The court explained that the level of the employer's control over its employees is determinative. While commuting, employees must be able to use the time effectively for their own purposes.

Because the employees in Morillion could not use the commuting time for their own pursuits, the court determined that they were subject to the control of the employer and entitled to wages for the time traveling on the buses to the worksite.

Applying those principles to this case, the appeals court said that if carrying tools and parts in a technicians' personal vehicle during the commute was optional, then the technicians were not subject to the employer's control for purposes of determining whether that time constituted hours worked. Further, the court said, even if technicians were required to carry tools and parts during the commute, they would not be subject to the employer's control if they were able to use the time effectively for their own personal pursuits, such as taking children to school on the way to work or stopping at a store on the way home, for example.

On the other hand, the court said, if technicians were required during the commute to carry an amount of tools and parts that did not allow them to use the time effectively for their own purposes, then they would be subject to the employer's control for purposes of determining hours worked and entitlement to wages.

The court then examined the facts of the case and noted that there was some dispute as to whether the technicians always had to carry the tools with them. Furthermore, the situation was not the same for all employees, the court noted. The technicians presented evidence of variation in the size of their cars, how much equipment and tools they carried, and how much space the equipment and tools occupied in their cars. Some employees claimed that the equipment occupied all of the passenger and cargo space in the vehicle except the driver's seat, effectively preventing them from using their car for most personal pursuits. Others said the equipment took up only a small amount of space. Because of the varying circumstances for the technicians, the court held that the issue of control could not be decided without a trial.  

Oliver v. Konica Minolta Business Solutions USA, Calif. Ct. App., No. H045069 (June 24, 2020).

Professional Pointer: Whether an employer will have to pay for employees' commute time depends on how much the employer controls the employees' ability to use the time for personal pursuits. 

Joanne Deschenaux, J.D, is a freelance writer in Annapolis, Md. 

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