How to Calculate Hours Worked Under California Employment Regulations

California employment regulations often differ from federal regulations. Calculation of hours worked is no exception. In an ERI webinar titled “Wage & Hour Road Rules for HR: Travel Pay in California Explained,” Ron Garrity outlined the basic rules employers must follow when calculating hours worked and also gave some examples of how this differs in California versus at the federal level.

California Employment Regulations: Federal Versus California

When both federal and state laws exist on a specific topic, the law which is more favorable to the employee will govern. California’s regulations include as “hours worked” any time when the employee is subject to the control of the employer, even if work is not being performed. Additionally, the concept of “control” is narrower than federal standard.

How to Calculate Hours Worked: Key Differences

While there are many regulations on hours worked and several notable differences between the federal regulations and California regulations, here are some differences Garrity outlined in the webinar (list not exhaustive):

After-hours commuting. When an employee has gone home after completing his or her day’s work and is subsequently called out after hours to travel a substantial distance to perform an unplanned job for one of the employer’s customers, all time spent traveling is work time (29 CFR 785.36). The federal Wage and Hour Division has not addressed whether travel to and from the regular workplace in an emergency after hours is work time but in California, it probably is.

According to Garrity, ” . . . it probably is in California because of the concept of control. An employee has done his regular or her regular commute, had his or her scheduled work day, had her commute home, and then all of the sudden you call them up and say ‘come back to work’ or ‘come to this work site out in wherever,’ you’re then under the control of the employer; it’s not a normal commute, they have to go right that moment, and it’s therefore considered on-the-clock.” Remember: travel time wages paid by an employer for calling an employee back to work must be included in the calculations of hours worked for purposes of paying overtime.

Commuting in employer-provided vehicles. Generally speaking, the time employees spend commuting to and from their regular place of work each day is not work time, so employers do not have to pay employees for this time. This rule applies regardless of whether the commute is in a private vehicle, public transportation, or in a company-provided vehicle. (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 (29 USC 254(a)). This exception also applies to time spent in activities incidental to the use of the vehicle for commuting (such as stopping for gas).

However, a commute in a company vehicle may be compensable under California law. Some recent cases have been awarded in the favor of employees who have contested this, especially in cases where there were extreme restrictions on personal use of the vehicle.

Travel that keeps an employee away from home overnight. This is designated as “travel away from home” by the Wage and Hour Division regulations (29 CFR 785.39). Travel away from home is paid work time under federal law when it “cuts across the employee’s workday.” This is because the employee is deemed to be simply substituting travel for other duties. The time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on non-work days.

The Wage and Hour Division, however, does not consider time spent traveling away from home outside of regular working hours as a passenger on a plane, train, boat, or bus as paid work time. California law, however, designates all such time as hours worked.

Time spent traveling. Under both federal and California law, regular meal period time is not counted as work time. Sleep and off-duty time is also not work time. Time spent traveling in planes, trains and automobiles, however, is work time under California law. Federal law would only call the hours work if they cut across normal business hours, even though on non-working days.

While this list is not exhaustive, it should give you an idea of some of the differences in the rules on how to calculate hours worked under California employment regulations versus federal employment regulations.

The above information is excerpted in part from an ERI webinar titled “Wage & Hour Road Rules for HR: Travel Pay in California Explained,” with expert Ron Garrity. To register for a future webinar, visit ERI webinars.

Ronald F. Garrity, Esq., is a shareholder at the South San Francisco-based law firm of Simpson, Garrity, Innes & Jacuzzi, PC. Garrity offers comprehensive advice to companies on key labor and employment law matters, including wrongful termination, drug testing, plant closures, leave of absence requirements, discrimination, harassment, affirmative action, privacy issues, proprietary information, wage and hour matters, and union relations.