Pay for Required Travel Time Cannot Be Bargained Away

By Joanne Deschenaux July 24, 2020
Oil and gas refinery at sunset

Union-represented employees cannot waive their right in a collective bargaining agreement (CBA) to all compensation for employer-mandated travel time, a California appeals court ruled.

California Labor Code Section 1194, read along with California Wage Order 16, which was issued by the state's Industrial Welfare Commission (IWC), requires that employees be paid for all mandated travel time. The right to that pay cannot be negotiated away by a union and the employer, the court said.

The plaintiff was a journeyman scaffold worker at gasoline refineries owned and operated by the employer. The company required the plaintiff and other employees to travel to and from work each day on the employer's shuttle, a trip that took about 30 to 40 minutes in each direction.

The plaintiff and other workers were subject to a CBA that was negotiated between the employer and the union representing the employees. The CBA contained a provision that employees would be compensated for post-shift travel time but not mandatory pre-shift travel time.

The plaintiff brought a class action for the company's failure to pay for the mandatory pre-shift travel time. The trial court ruled that such an agreement was permitted by Wage Order 16 and dismissed the case before trial. The plaintiff appealed.


The court first noted that California wage and hour claims are governed by two sources of authority: the labor code and a series of 18 wage orders that were adopted by the IWC.

The IWC has broad statutory authority to issue industry- and occupation-wide wage orders specifying minimum requirements with respect to wages, hours and working conditions. Wage Order 16, which is applicable to this case, governs employers and employees in the construction industry.

Because the legislature is the source of the IWC's authority, a provision of the Labor Code prevails over a wage order if there is a conflict, the court added.

Labor Code Section 1194 and Wage Order 16 both require that all employees be paid at least minimum wage for all hours worked. Section 1194 states that this right to receive minimum wage cannot be waived by union-represented employees.

"Hours worked" for purposes of Wage Order 16 means "the time during which an employee is subject to the control of an employer."

The California Supreme Court has ruled that "hours worked" includes employees' compulsory travel time. Wage Order 16 Section 5(D) provides that the order applies to employees covered by a valid CBA "unless the collective bargaining agreement expressly provides otherwise."

[Need help with legal questions? Check out the new SHRM LegalNetwork]

The trial court held that Section 5(D) permitted the union and the employer to waive the employees' right to receive pay for their required travel time. The appeals court disagreed.

While an employer and union could agree to decrease employees' pay, the employees still were entitled to minimum wage for all hours worked, the appellate court concluded when reading the labor code and wage order together. Since the hours worked included mandatory travel time under the employer's control, the union and the employer could not waive all compensation for that time.

The appeals court reversed the trial court's order dismissing the case and allowed the case to move forward.

Gutierrez v. Brand Energy Services of California Inc., Calif. Ct. App., No. A154604 (June 16, 2020).

Professional Pointer: California courts have held that union-represented workers may bargain away their rights to overtime pay and meal periods. But other California courts have also interpreted Labor Code Section 1194 to preclude an employer from contracting with its employees for a rate of pay less than minimum wage.

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



Hire the best HR talent or advance your own career.

Break California’s intricate labor code.

Successfully interpret and apply California employment law to your organization’s people practices.

Successfully interpret and apply California employment law to your organization’s people practices.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.