Bryan Little, Farm Employers Labor Service

Feb. 6, 2019

Time spent traveling to and from work is generally not considered hours worked, no matter whether the employee works at one or several workplaces. Wages are therefore ordinarily not due for such commuting time. Typically, farm labor contractors direct employees to report to different work sites with a wide range of travel times. To avoid any misunderstanding, each employee should, when hired, acknowledge that travel distances will vary and that travel between the employee’s home and job assignments is not compensable. A written statement should be given to each employee that describes the farthest destination in various directions to which the employee will have to report.

Time spent by an employee while traveling to execute an assignment as directed by the employer on the way to or from work must be compensated. An example of this is where the employer or its representative (e.g., foreman) tells the employee to check an irrigated field or retrieve spare parts in town while commuting to or from work. Time spent by an employee while traveling between places of work (e.g., from field to field or from a field to some location to receive instructions or tools) must be compensated.

At times, distinctions between “normal” commuting time and compensable travel time for travel undertaking at the direction of the employer are not clear.  A 2003 opinion letter by the Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE) draws a distinction between “compulsory” travel time and “ordinary commute time:” 

“DLSE has taken the position that travel involving substantial distance from the assigned work place to a distant work site to report to work on a short-term basis is compensible travel time.  The travel time is measured by the difference between the time it normally takes the employee to travel from his or her home to the assigned work place and the time it takes the employee to travel from home to the distant work site. This could calculate to no commute time if, for instance, the travel time is less from the employee’s home to the distant work site than the normal commute travel time by the employee.”

“Indeed, DLSE has concluded that in the event an employee with a fixed and assigned workplace is required, on a short-term basis, to travel anything more than a de minimis distance to report to work at a place other than an employee’s usual work place, the employee is entitled to be compensated for the additional time measured by the difference in the time normally required to travel between the employee’s home and the regularly assigned workplace and the time between home and the temporary worksite. It should be noted that this calculation is expressed in “time” and not distance. This is because traffic patterns, of course, vary from location to location and travel times for the same distance would likewise vary.” (DLSE Op Ltr 2003.4.22)

Under these principles, whether or not employee travel to a work location other than the usual work location is “normal” commuting time or “compulsory travel time” depends on how much more time it takes each employee to travel to training session than to travel to the employee’s usual work place. Time spent traveling anything more than a de minimis  additional distance should be counted as hours worked. If the employee’s are notified before such travel that the travel time is compensated at minimum wage, then that is the rate of pay even if the employee’s is paid at a higher rate for other work.

Employees have sometimes claimed that any travel in a company vehicle, particularly if the vehicle in question carries work-related tools are materials, is compensable time.  In Hernandez v. Pacific Bell Telephone Company, a California Court of Appeal clarified when employees must be compensated for commuting in company vehicles.

The employees in question were current and former Pacific Bell technicians who installed and repaired internet and television services in customers’ homes.

In 2009, Pacific Bell began the voluntary Home Dispatch Program (“HDP”) allowing technicians to take company vehicles home instead of returning the vehicles to the Pacific Bell garage. Under the program, technicians drove company vehicles, containing tools and equipment, to and from home each day. The technicians in the program were not compensated for the time spent driving to the first worksite in the morning and were not compensated for the time spent driving home after their last appointment. Each employee involved in the law suit participated in the program.

The employees sued Pacific Bell alleging they were owed compensation for the time spent traveling in a company vehicle, loaded with tools and equipment, between their homes and a customer’s residence.  The employer argued compensation for commuting in a company vehicle is only required if commuting was mandated, whereas participation in the program was optional. The trial court agreed with Pacific Bell, and the employees appealed.

In its opinion, the Court of Appeal noted that employees must be compensated for “hours worked,” and noted “hours worked” is time during which the employee is: (1) subject to the employer’s control; or (2) time the employee is suffered or permitted to work, whether or not required to do so.  To exercise “control” an employer must require employees to take certain transportation to a work site. Thus, travel time on employer-required transportation constitutes “hours worked.” The appellate court applied that rule and found Pacific Bell did not require the employees take certain transportation because the program allowing employees to drive from home to work sites and home again was optional. Therefore, this commute time was not “hours worked” under the control test.

Regarding the “suffer or permit” test, this prong is met when an employee is engaged in certain tasks or exertion that a manager would recognize as work. The test applies even when the employee is not subject to the employer’s control, such as unauthorized overtime that the employer knows about. The court dismissed the employees’ argument that driving company vehicles with tools and equipment meant that employees were working when driving to and from home. The court noted that employees were not expending effort when driving around with the tools and equipment, thus they were not suffered or permitted to work. Therefore, their commute time was not “hours worked” under the “suffer or permit” prong.

The appellate court affirmed the trial court’s decision, and found that the employees’ time spent commuting in company vehicles loaded with tools and equipment was not compensable time.

This decision may assist employers by clarifying when employees must be paid for commuting in company vehicles. Employees must be compensated for commuting in company vehicles if the employees are: (1) taking certain transportation required by the employer; or (2) expending effort on tasks that a manager would recognize as work. Therefore, merely commuting in a company vehicle loaded with tools and equipment is not enough to qualify as “compensable time.”

Employers should also take care to compensate employees for all expenses incurred in the event of employer-controlled and -directed travel, particularly vehicle mileage; a generally safe harbor is to compensate at the Internal Revenue Service (IRS) established per-mile rate for operating vehicles ($.58 per mile for 2019).