On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
From Home to Work
Generally speaking, time spent commuting to and from work is not considered hours worked, and is not compensable. This general rule applies whether an employee works at a fixed location or at different job sites. However, if an employee is required to travel during the workday, he/she must be compensated for time spent traveling if required travel is related to the employee’s job duties.
Travel time in addition to regular working hours constitutes hours worked if it is the result of an employer’s instructions. Significantly, employers can establish different rates of pay for travel time, if not less than the minimum wage, and the employee is clearly informed of the different rate before the travel occurs.
Under California law, travel time is compensable if an employee is subject to the control of his/her employer. While normal commuting time is normally not compensable working time, employees are subject to the control of their employer and are thus entitled to compensation in situations where the employer requires them to meet at a designated place to take its buses to work, and prohibits them from taking their own transportation. Under these circumstances, the time spent waiting for and traveling on the buses is deemed compensable hours worked. Employers can provide optional free transportation to employees without paying compensation, but may not require employees to use the transportation offered.
One Day Out of Town Travel
All time spent traveling out of town by an employee on special one day assignments must be compensated as hours worked. However, all of the time an employee spends out of town is not counted as hours worked. Because the employee would normally have to report to work, any time spent traveling home and to work, as well as an employee’s usual meal time, can be deducted.
Overnight Out of Town Travel
Employees who are required to travel out of town overnight are entitled to wages for travel time during normal working hours, on both normal working days and normal days off. However, customary meal times may be deducted. Contrary to federal law, the California definition of hours worked does not distinguish between hours worked during “normal “working hours and hours worked outside such hours. Because required travel time constitutes time during which the employee is “subject to the control of the employer,” it constitutes hours worked, whether or not employees are free to read a newspaper or engage in other personal pursuits.
Similarly, California law adopts a more aggressive approach regarding time spent traveling to and from business meetings or other events where attendance is required. Employers must pay wages for the travel time getting to and from required events. All time spent driving, or as a passenger on an airplane, train, bus, taxicab or car, in traveling to and from a required out of town event is compensable. The same is true of time spent waiting to purchase tickets, checking baggage, waiting to board or boarding and related activities. These activities represent time when the employee is subject to the employer’s control and is thus compensable hours worked.
However, time spent on purely personal pursuits is not compensable. For example, an employee who remains an extra day to do site seeing, is not engaged in compensable activities.
Employers can establish a different rate of pay for travel time, as noted above. If an employer has agreed to pay a fixed hourly rate of pay for any work performed, travel time must be paid at that rate, and the applicable overtime rate for hours beyond eight in a day, or 40 in a week. A lesser rate can be applied to travel time, if it is not less than the applicable minimum wage, and has been clearly communicated to the employee before otherwise-compensable travel time occurs.
Work Day Travel
If an employee’s normal duties include traveling, from one work site to another, for example, this must be compensated as hours worked. By the same token, travel to a location for the purpose of receiving instructions, collecting tools or taking other preparatory actions, is also compensable work time. This is true without regard to any agreement, custom, contract or past practice to the contrary.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 37 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 37 years.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
Heads Up! is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.