Driving Company Vehicle Didn't Make Commuting Time Compensable

Employees who drove company vehicles loaded with equipment and tools from home to work at the beginning of their workday and back home at the end of the day were not entitled to compensation for their commuting time, a California appellate court ruled.

Because the employees were not required to use the company vehicles to drive to work, the employees were not under the control of the employer during their commute, the court said. Furthermore, simply transporting tools and equipment during commute time is not compensable work when no effort or extra time is required to carry out the transport, the court added.

Pacific Bell Telephone Co., a telecommunications company, pays technicians on an hourly basis to install and repair products at customers' homes. Technicians may not use their own vehicles while on the job. They must use company vehicles, and all necessary equipment and tools must be transported in those vehicles.

Before 2009, all technicians picked up company vehicles loaded with the necessary equipment at a Pacific Bell garage. The workday began at the garage, and technicians were paid for the time that elapsed between picking up the company vehicle at the garage and arriving at the first worksite. They were also paid for the time spent driving back to the garage from the day's final worksite.

In 2009 Pacific Bell began the Home Dispatch Program (HDP), which allows technicians to take a company vehicle home each night instead of returning all vehicles to the company garage. Participation in the HDP is optional.

Under the program, technicians drive the company vehicles containing tools and equipment to and from home each day. Technicians must be at the first worksite by 8 a.m., and they are not paid for any time before 8 a.m. spent driving from their homes to the first worksite. Nor are they paid for the time spent driving home after their last appointment.

Two technicians brought a class action on behalf of all Pacific Bell technicians, claiming that they are not being paid for all "hours worked" as required by law. The company filed a motion for summary judgment to have the lawsuit dismissed before trial. The trial court granted the motion, and the plaintiffs appealed.

[SHRM members-only toolkit: Complying with California Wage Payment and Hours of Work Laws]

The appellate court first noted that under the wage orders issued by the Industrial Welfare Commission governing employment in California, "hours worked" is defined as the time during which an employee is "subject to the control of an employer," and it includes all the time the employee "is suffered or permitted to work, whether or not required to do so."

Each phrase of the definition—time during which an employee is "subject to the control of an employer" and time the employee "is suffered or permitted to work, whether or not required to do so"—establishes a separate test for hours worked, the appellate court said.

Control Test

The plaintiffs claimed that the travel time between the technician's home and worksite satisfied the control test, focusing on the numerous restrictions placed on technicians under the HDP. Technicians can use the company vehicle only for company business, and only authorized persons can ride in or drive the vehicle. Technicians are required to drive directly between home and the worksite; they are not permitted to stop along the way to run errands, drop off or pick up children from school, or talk on a cellphone while driving. Therefore, the plaintiffs argued, they were under the employer's control during their commute.

However, citing a 2000 California Supreme Court case (Morillion v. Royal Packing Co., 22 Cal.4th 575), the court noted that employers are not required to pay employees for their travel time merely by providing them transportation, even if the employer imposes restrictions on the use of the transportation. Rather, only when the employer requires employees to use the provided transportation may commuting time be considered compensable work time, the court said.

In this case, use of the company vehicles in the morning and evening is not mandatory. The plaintiffs could have chosen to use their own vehicles.

Suffer or Permit to Work Test

The plaintiffs further claimed that the disputed commute time was compensable as hours worked under the "suffered or permitted to work" definition. They argued that they were working while driving to and from home because they were transporting tools and equipment that were necessary for them to do their job.

The appellate court rejected this argument, explaining that the standard of "suffered or permitted to work" is met when an employee is engaged in tasks or exertion that a manager would recognize as work. Mere transportation of tools, which does not add time or exertion to a commute, does not meet this standard, the court concluded.

The court held, therefore, that the employees' time was not compensable and affirmed the trial court's order dismissing the lawsuit.

Hernandez v. Pacific Bell Telephone Co., Calif. Ct. App., No. C084350 (Nov. 15, 2018).

Professional Pointer: Offering an employee a company-owned vehicle to commute to and from work will not turn commuting time into compensable time. However, if the employee is required to use the provided transportation to get to and from work, the employer may have to pay for the time spent commuting.

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

[Visit SHRM's resource page on employee performance and discipline.]