When is commuting time compensable work time in California?

Most California employers do not expect to have to pay employees for commuting time. However, there are some important exceptions to this rule. Some of these are fairly straightforward, such as commuting time when the employee is called back in for an emergency. Others are less clear, such as when an employee is driving a company vehicle. What are the rules?

There are many different commuting time scenarios, and each have different rules. Here’s a quick breakdown:

• Regular commuting time. “Normal travel from home to work is not work time. This is true whether the employee works at a fixed location or at different jobsites. This is directly out of the code of federal regulations.” Marc Jacuzzi told us in a recent CER webinar.This regular commuting time also includes the time spent walking from the parking lot to the worksite. On the other hand, if an employee has to report to a central meeting site to pick up equipment, supplies, or coworkers, or to get instructions, work time starts at that location and the commuting time to the final job location would be compensable.
• After hours commuting time. “When an employee has gone home after completing his or her work day and is subsequently called out at after hours to travel a substantial distance to perform an unplanned job for one of the employer’s customers, all the time spent traveling is time worked.” Jacuzzi told us. “The federal Wage and Hour Division – which is part of the DOL (Department of Labor) – has not addressed whether travel to and from the regular workplace in an emergency after hours is time worked, but in California . . . it is.”
• Commuting in employer-provided vehicles. The Portal-to-Portal Act provides that travel between home and work in a company-owned vehicle is not paid work time as long as the travel is within the normal commuting area for the employer’s business, and the use of the vehicle is subject to an agreement between the employer and the employee or the employee’s representative. This exception also applies to time spent in activities incidental to the use of the vehicle for commuting, such as stopping for gas.However, there may be times where commuting in an employer vehicle is compensable under California law. A specific case, Rutti v. Lojack noted this. The essential questions that employers should consider (these were relevant in the Rutti case) include:
  • Is the employee required to drive the company vehicle?
  • Is the employee allowed to use the vehicle for personal errands and the like? (In the Rutti case, he was not allowed to use the van for personal errands).
  • Is the employee allowed to carry other passengers? (In the Rutti case, he could not carry passengers – the employer had control in this regard).
  • Is the employee allowed to drive anywhere other than the work site? (In the Rutti case, he was to go directly to and from work sites. This again shows employer control – turning it into compensable time).
• Special assignment commuting. “When an employee who regularly works at a fixed location in one city is given a special one-day assignment to another city, most of the time spent traveling is work time and must be compensated. For example, an employee who works in San Francisco with regular work hours from 9 to 5 is given a special assignment in Sacramento, with instructions to leave San Francisco at 8 a.m. She arrives in Sacramento at 10, ready for work. The special assignment is completed at 3, and the employee arrives back in San Francisco at 5. Such travel is not regarded as ordinary home-to-work travel and must be compensated.” Jacuzzi explained.

  “It was performed for the employer’s benefit and at its special request to meet the needs of a particular and unusual assignment. Therefore, it would qualify as an integral part of the principal activity that the employee was hired to perform. That’s the federal standard.” All the time involved, however, need not be counted. Except for the special assignment, the employee would have had to report to her regular worksite. As such, the travel time between her home and the railroad station (where she commuted from) need not be compensated. Also, the usual mealtime need not be paid.

• Travel during regular work time. Time that an employee spends traveling as part of his or her principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked.

The above information is excerpted from the webinar “Employee Travel Pay Explained: California HR’s Wage & Hour Road Rules.” To register for a future webinar, visit CER webinars.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.