It is common for field workers like service technicians to drive company vehicles to the customer’s home or place of business to service or install a product. Generally, an employee’s commuting time between home and work is not considered hours worked. Travel time between an employee’s home and the changing worksites (where an employee may be assigned to work in any given day) are excluded from the work hours and not compensable work time.
However, employees should be paid when the commute time is “subject to the control of the employer.”
If the employees are required by the employer to meet at a designated place to take its buses to work and employees are prohibited from using their own transportation, then the time spent by employees commuting by bus to the employer’s work site is compensable. However, if employees were not required to take company-provided transportation, and had the option of taking their own transportation, travel time was not considered compulsory. In this instance, it is not considered work hours.
What does it mean then to be “subject to the control of the employer” in order for commute time to be paid? The answer may depend on facts surrounding the commute itself. Consider the following case:
Joseluis Alcantar works as a service technician for Hobart Service. Hobart’s parent company, ITW Food Equipment Group, designs and manufactures commercial food equipment. Hobart provides after-sale maintenance and repair services to ITW’s customers. Alcantar and other service technicians drive to and from customer locations in vehicles Hobart provides, carrying the tools and replacement parts necessary to make repairs.
As hourly employees, the technicians are paid for the time they spend fixing equipment and the time they spend driving to and from different assignments. If they commute in the service vehicles, they are also paid for the time spent driving from their homes to their first assignments and from their last assignments back home, but only to the extent it falls outside their “normal commute.” A normal commute is the time it takes a technician to drive from his home to his branch location. Alcantar sued the employer claiming that they should also be paid for their “normal commute” time. He alleged that, while commuting to and from work in Hobart’s vehicles, the service technicians are under Hobart’s control.
As a condition of employment, the technicians must sign an agreement governing their use of Hobart’s vehicles. The agreement states that the technicians have the option either to commute in their vehicles or leave the vehicles at their branch offices. However, the employer strictly prohibited the personal use of the service vehicle, unless prior written approval is granted by management. Service technicians are also prohibited from carrying passengers without prior approval. Transporting or storing alcohol is also completely forbidden. Hobart also expects service technicians to respond to calls on their company-issued cell phones while driving to and from their first and last assignments of the day. Finally, the employer states in the agreement and in its personnel manual that operation of a service vehicle for personal use is ground for termination. Service technicians allege that as a result of these restrictions, they are under Hobart’s control when commuting to and from work.
The employer asked the court to throw the case out, claiming that service technicians are not required to use the company vehicles, that they have a choice of using their personal vehicles. The trial court did throw out the case but the technicians appealed.
The appellate court noted that the employees can win by proving that the restrictions during normal commute in the company vehicles show that they are under the employer’s control. Despite the employer’s argument that the use of the company vehicles is voluntary, the employees, as a practical matter, are required to commute in company vehicles. The court, thus, decided that the technicians can proceed with their lawsuit to show that, under the facts and the law, they should be paid for their “normal commute” time.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.