What Commuting Time Is Compensable?

Written by Galen T. Shimoda and Justin P. Rodriguez

For the vast majority of Californian's the time spent driving from the home to their place of employment is not compensable. However, the law governing what time is or is not compensable focuses on control, not whether it can be labeled as "commute time" or some other label people would generally feel justifies it not being compensable. Thus, the reason commuting time is non-compensable for a majority of California employees is because employers generally have no say in how you drive your own car to work, e.g. whether you can stop at Starbucks on for that much needed caffeine or whether you can run other personal errands on your way in to work. There is just not enough control.

Certain types of jobs are more apt to have control issues during commute. Take, for example, service technicians that travel from jobsite to jobsite each day, multiple times a day, and usually who start at different locations each day. Depending on the conditions placed upon those employees and other employees working similar types of jobs, the time spent commuting to the first jobsite and back from the last jobsite can be compensable. This issue was decided in the recent case of Alcantar v. Hobart Serv., No. 5:11-cv-01600-PSG-SP (9th Cir. Sept. 3, 2015). In Alcantar, the plaintiffs were a putative class of employees who worked as service technicians and traveled between jobsites and had different jobsites at the start of each day. They were not paid for the time spent traveling to the first jobsite unless the time it took to reach the first jobsite was longer than it took for the employee to travel from their home to the employer's office. The employees drove company vehicles with valuable tools and equipment that they were responsible for, they could not use the vehicle for any personal reasons without prior approval, were required to respond to company calls during the commute, and they contended that they had no real choice in whether or not to drive the company vehicles because of a lack of secured parking that may cause theft of equipment from the trucks, which the employees would be financially responsible for. The Alcantar Court found this may be sufficient control to deem the commute time compensable and the ultimate determination would be for a jury to decide.

This case gives an excellent illustration of the matters an employee should consider if they are wondering whether they should be paid for their commute time: 1) are they required to drive the particular vehicle in question; 2) are they able to use the vehicle for personal purposes during the commute time (i.e. run errands, transport passengers, eat food inside, etc.); 3) are they required to transport company equipment or other materials during the commute; 4) are they required to otherwise respond to company and/or customer inquiries during the commute; and 5) are there restrictions in how they maintain the company equipment or other materials during the commute. Other pertinent considerations may include matters such as are employees required to be in uniform while in the vehicle during the commute, are they required to perform any sort of vehicle inspections or other company required task before being able to use the vehicle, or are they required to drive a particular route during the commute.

As may be clear by now, this type of control issue will likely have more application on employees who are in the service technician field and employees in construction. However, it can appear in any type of employment that requires travel as part of the job, like sales representatives.

If you believe you may have compensable commute time and would like to have your claims evaluated, please contact our office.

 

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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