Travel pay poses a significant risk for wage and hour claims since the line between employer time and employee time can easily blur. With employees commuting to and from the workplace; to and from jobsites; and to and from hotels, airports, and conferences, the line between personal time and work time isn’t always clear. The risk of legal complaints over travel pay is of particular concern for employers in California because wage and hour claims have the potential to evolve into costly class action lawsuits. And, as always, California’s employee-friendly wage and hour laws impose additional burdens on employers.
California vs. Federal Travel Pay
“If you’re an employer in California, you’re subject to two bodies of law (at least): the federal law and California law. Both of those bodies of law have their own definitions of what is working time or hours worked – those hours that have to be compensated at minimum wage or above. If you’re in cities like Oakland or San Francisco that also have some additional regulation, you’ve got local law that you have to contend with.” Robert J. Wenbourne told us in a recent CER webinar. When both federal and state laws exist on a specific topic, the law that is more favorable to the employee will govern.
At the federal level, the FLSA’s primary test of what is compensable work time (including time spent traveling) is whether the employee’s time is spent primarily for the benefit of the employer. It is a fairly simple commonsense approach. In California, the test is broader. It asks whether the employee is subject to the control of the employer, which may be the case even if no work is being performed in that moment.
There are several examples of case law that have set the precedent for travel pay in California. Two cases serve as examples of how California case law differs from federal. The first one, Morillion v. Royal Packing Co., involved an employer who required employees to use employer vans to go to job sites, but the commute time was unpaid. It was deemed by the courts to be compensable work time because the employer required the use of the vans, which effectively removes the employee’s ability to do anything else on the commute. As such, the employees were certainly under employer control during the commute time.
The second travel pay case example from California is Armenta v. Osmose, Inc. In this case, it was determined that compensable hours worked includes “nonproductive” time, including travel time to remote jobsites, time spent loading equipment and supplies, time spent doing paperwork, and time spent maintaining the defendant’s vehicles. Like the Morillion case, the crew members (in this case, utility pole maintenance workers) were required to meet at a designated location, and then travel to the actual work site in company vehicles.
As you can see from just these two examples, the California courts have held employers to a higher standard when determining what time is considered compensable work time, which increases California employers’ responsibility to provide pay for this type of travel. Be sure to understand both federal and state obligations when crafting a travel pay policy.
The above information is excerpted from the webinar “Travel Pay in California: What and When to Pay Employees on the Move.” To register for a future webinar, visit CER webinars.
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.
When determining whether your employees’ commute time is compensable, don’t make the mistake of assuming that any travel that begins or ends at home is automatically noncompensable. Under California law, the level of your control over an employee is the deciding factor—not whether the employee happens to be departing from or returning to his or her home.
When determining whether your employees’ commute time is compensable, don’t make the mistake of assuming that any travel that begins or ends at home is automatically noncompensable. Under California law, the level of your control over an employee is the deciding factor—not whether the employee happens to be departing from or returning to his or her home.