Travel pay for non-exempt employees can become complicated in a hurry, especially with California’s employee-friendly wage and hour laws imposing additional burdens on employers beyond the federal travel pay requirements. In a recent CER webinar titled “Travel Pay in California: What and When to Pay Employees on the Move,” Robert J. Wenbourne outlined the differences between the federal and California travel pay requirements. He gave a lot of helpful advice for webinar participants to understand California’s travel pay obligations, and took the time to answer many participant questions on this difficult topic. Here are some of the questions:
Q. If a California employee has the option of taking faster public transport (say, a plane from San Francisco to Los Angeles, for example), yet decides to drive—would California law allow the employer to pay only for the time that would be spent on the plane (presumably less)?
A. While this is open for debate, most likely no, the employer would not be able to only pay the shorter time. This is because California has a rule that is quite different from the federal law: In California, any time spent traveling is going to be work time and employers are obligated to pay for it. An employer may be able to make the argument that a situation is unreasonable, but it will be a difficult argument to make.
Q. When it comes to travel pay, what about waiting time at an airport (in which an employee is not technically traveling, but instead waiting for the flight)? Is that compensable under either federal or California law?
A. It’s definitely compensable under California law. All of the time – even wasted time – spent traveling is compensable under California law. The only time that is not going to be paid in California is time the employee spends on leisure activities, regular meal periods, and a standard sleep period.
Q. What are an employer’s obligations under California labor code section 2802 to compensate for wear and tear on cars (and gas) when an employee is using his personal car to run to the bank (for the employer) or to transfer merchandise between stores?
A. While I’ve not dealt with any specific cases on this question, this section of the labor code does state that the employer is responsible for paying for all costs an employee incurs on behalf of the employer. There will be no problem if you reimburse an employee for the use of their own vehicle at the IRS’ published rate. This reimbursement is then excluded from the regular rate of pay and is not included in taxable income, as long as the employer doesn’t compensate beyond the reasonable rate. Additional compensation above that rate may be viewed as a bonus or taxable compensation.
Q. If while on overnight travel an employee arrives at the hotel at 5pm and is free to do as they wish until the next morning—is this employee paid until 5pm that day and then goes back on the clock the next morning when he leaves the hotel to go to the next site?
A. Not in California. In California, since the employee is not at home and not really free to do anything he wants, all of that time at the hotel is going to be treated as compensable work time except any time that the employee actually engages in personal leisure activities. Just because the employee has the ability to have free time, California doesn’t consider that enough to relieve the employer’s burden to pay for the travel time. If the employee is out of his home overnight, all of the time is going to be compensable except regular meal periods and a sleep period (and even those exceptions have limits of how much time can be reasonably attributed to them).
Q. If an employee drives a company vehicle directly to the job site, and can perform some errands while en route but cannot transport others, would that be compensable work time under California rules or under federal rules?
A. Federal law requiring the time to be compensated won’t apply. Federal law says that just because you’re driving the company vehicle from your home to the first place of employment doesn’t make it compensable, and work is not being performed. However, you’re right in the middle of the state case law precedent. Control becomes the primary question, as in: is the employer controlling the employee’s time? In your example, you have some control over the employee, but not complete control. If you had so many controls that the employee can’t use the vehicle for personal pursuits then it would definitely be compensable time, but that is not the case here. However, you’ve got one fairly restrictive requirement of no other passengers. This situation is not black and white and there’s no simple answer. This is a risky situation.
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Attorney Robert J. Wenbourne of Simpson, Garrity, Innes & Jacuzzi P.C. represents employers in all areas of labor and employment law. With more than 20 years of experience, he has practiced extensively before the National Labor Relations Board representing employers in union organizing and unfair labor practices proceedings; he represents employers in state and federal court and before state and federal agencies.