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California Court Kiboshes Claim Commute’s Compensable

by D. Gregory Valenza | | November 18, 2018

Commutting time is usually not compensable.  But if an employee is required to perform “work” at home, or during the commute, then the time may be considered hours worked.  

Certain Pacific Bell technicians used to have to pick up their work vans at a depot, where the vans and equipment were kept. They drove their personal cars, picked up the van and equipment, and then went on to their jobs at customer residences.  Once they picked up the van, all time was on the clock. But driving between home and the depot was not compensable, because that’s what a commute is.  

But, then Pac Bell offered the technicians a voluntary program, under which employees could use the company van to commute directly between home and their first “job” of the day (e.g., a customer residence). This arrangement let the technicians skip the step of driving to and from the depot to pick up the van. The van was loaded with equipment. And Pac Bell had rules in place governing the use of the van.   Pac Bell did not pay employees for the commuting time, as the program was voluntary, and the commute was still not working.   

The Pac Bell voluntary program seems a nice way to let the technicians avoid using a personal car for a commute, and would shorten the time away from home.  And it was entirely voluntary.  Winner, amiright?  Nah. As happens a lot in California, some employees got together and sued, claiming that Pac Bell owed employees wages for the commuting time in the company van.  

The legal issue was whether the technicians’  activities while driving the van home and to the customers’ locations were “hours worked.” 

The plaintiffs offered two theories;  1) that they were subject to Pac Bell’s control, rendering their time “work” as defined in the wage orders.  And 2) Pac Bell “suffered or permitted” the technicians to work off the clock; I.e., they knew the techs were working even though they were not formally required to do so.

Regarding “control,” the plaintiffs pointed to the Company’s restrictions on the use of the van.

technicians can use the company vehicle only for company business and only authorized persons can ride in or drive the vehicle. Technicians must drive directly between home and the worksite; they are not permitted to stop along the way to run errands or drop off or pick up children from school or talk on a cell phone while driving. 

But the plaintiffs could not get over the key reason that Pacific Bell won this case:  use of the Company van was voluntary. That is, the employees could chose between taking the van home, subject to the Company’s vehicle policy, or commuting in their own car to and from the Depot.  Had the Company mandated use of the van, and imposed these restrictions, the plaintiffs would have had a stronger case. 

Regarding “suffer or permit to work,” the plaintiffs argued 

they were working while driving to and from home because they were transporting tools and equipment that were necessary for them to do their job. 

The plaintiffs lost this argument too.  The Court noted that the mere transportation of the tools and equipment in the van was not “work” because it did not add to the time or exertion needed to perform the commute. An empty van or a van with equipment and tools was precisely the same for the employees driving.  It bears noting that the Company paid the employees for loading and unloading the tools and equipment, whether at the depot or at the customers’ residences.

So, employers that allow employees to drive Company vehicles to and from work do not have to pay employees for the time, even if there are rules regarding use of the vehicles, and even if there is company equipment inside.  The key issue for employers is that the use of the vehicle is voluntary.  Those employers  that mandate use of the vehicle must examine their policies in light of other case law.  Like this one: Rutti v. Nov Corp. (9th Cir. 2010) 596 F.3d 1046 

This case is Hernandez v. Pacific Bell and the opinion is here. 

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