Q: “I work for a landscape company [in] San Mateo and I usually report to work every morning at the yard. We generally work locally so we leave the yard in a company truck with our mowers and tools. My boss got a really big job in Los Gatos and now he makes me drive to Los Gatos every day and report in at the job site. The job is taking two weeks. I asked why I can’t ride down with him and he says that he has so many workers on the job he can’t give us all rides. I used to get paid from when I got to the yard until when I would get back to the yard at the end of the day. Now he says that he is only going to pay me for the time that I am on the job not for my driving time or my gas. Is this right? I am spending more time away from home and actually making less.”
A: Carlo, under federal law, United States Code Title 29 sections 251-262 in the Code of Federal Regulations, travel time between home and work is generally not compensable under the Portal-to-Portal Act. Pursuant to the regulations found in CFR 785.37, travel time is compensable if the travel involves a special assignment in another city, traveling to another job site during the workday or travel to receive instructions, perform work or retrieve tools.
The Federal Fair Labor Standards Act provides workers a minimum level of protection nationally. This, however, does not in any way create a bar against states putting in place more stringent worker protections. Therefore, if California law provides greater protections to employees, the provisions of California law will apply. California law offers greater worker protection in this area than the federal government.
Under California law, consistent with federal law, time spent traveling to and from work generally is not compensable or counted toward hours of work. However, in California, standards established by the Industrial Welfare Commission, which is no longer operational, through its wage orders, hours worked is defined more broadly and includes “the time during which an employee is subject to the control of an employer” and “all the time the employee is suffered or permitted to work, whether or not required to do so.”
Because compulsory travel time constitutes time during which the employee is “subject to the control of an employer,” it constitutes compensable hours worked. Thus, travel time at the employer’s direction counts as hours worked and is compensable time.
On Feb. 15, 2002, the California Division of Labor Standards Enforcement issued an advice letter on this very subject. The opinion replied on the California Supreme Court case Morillion v. Royal Packaging Co.: “Under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event. This extends beyond manual labor and includes time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from an out-of-town event, as well as time spent waiting to purchase a ticket, check baggage, or get on board. This time is all considered time spent carrying out the employer’s directives, and thus, can only be characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable ‘hours worked.’”
If your boss refuses to pay you for this time, you can file a complaint with the California Department of Industrial Relations. You can get more information on your rights, and how to file a complaint, at www.dir.ca.gov.
The Department of Labor Standards Enforcement, investigates and enforces wage violations on behalf of employees in California and you can utilize their services without the aid of a lawyer. If you make a demand and you are terminated, then I suggest that you retain the services of a trial lawyer to protect your rights.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.