Written by attorney Arkady Igor Itkin

California Employment Law: Should You Be Paid for Your Commute Time?

An employee who travels to complete assignments and projects for his employer and/or for his employer's clients is often crioius whether he/she should be paid for that commute time. The leading California Supreme Court case on the issue of whether an employee should be compensated for a particular kind of commute is Morillion v. Royal Packing Company, 22 Cal.4th 575 (2000). In that case, the court was specifically called to determine whether the employer that requires its employees to travel to a work site on its buses must compensate the employees for their time spent traveling on those buses. In that case, the employees in question were agricultural wokrers who were traveling on company buses to and from the fields where they worked the land. The court heavily relied on a number of the DLSE (Department of Labor Standards Enforcement) Wage Orders to determine which hours should be considered "hours worked" within the meaning of the law. The Court has concluded that since the subject employees were "suffered or permitted to work without being required so" by being on the bus controlled and provide by the employer, they should have been compensated even though they were not per se working while on the bus. Interesting, the court distinguished the situation in which an employees use his own vehicle for commute to and from work, which is generally non-compensable, from the commute in which an employee uses the employer's vehicle. Since the former has the freedom to run his own personal errands during the commute and choose which route to take to work, he is not subject to "control" of the employer to the same degree as the latter. The court thus held that it's the level of the employer's control over its employees rather than the mere fact that the activity is required that is determinative.

The above holding seem to be consistent consistent with another decision in which the an appellate court has determined that an employe who is required to remain on the work presmises during lunch hour had to be compensated for that time under the definition of the hours worked, since they were not relieved of their duties and were still subject to the employer's control. Bono Enterprises, Inc. v. Bradshaw 32 Cal.App.4th 968, 975 (1995).

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