Courts Address Waiver of “Compulsory Travel Time” Pay and Circumstances that Bring Travel Time Under Employer Control

July 17, 2020 by Kena Cador

Two different appellate districts in the California Courts of Appeal last month took up the question of whether an employer should pay employees for time spent traveling to their worksites.

In Gutierrez v. Brand Energy Services of California, the appellate court held that a Collective Bargaining Agreement (CBA) cannot waive the right to minimum wage for employer mandated travel time. The applicable CBA in the case contained a standard “in on employee’s time, out on the Company’s” clause. This clause mandated payment of wages to employees for time spent at the end of the day traveling via employer-mandated transit from a construction site to the designated employee parking area, but relieved the employer of any obligation to pay employees for the reverse trip at the beginning of the day. In striking down the validity of such negotiated terms, the Court determined members are entitled to at least minimum wage for time spent under employer control prior to starting their shift, even if foregoing pay for pre-shift travel allows for a higher negotiated wage rate.

In Oliver v. Kinoca Minolta Business Solutions U.S.A. Inc., another appellate court addressed whether employees who drive from their homes, in their personal vehicles, directly to their first job site in the field, and then return directly to their homes at the end of the day, are engaged in non-compensable commute time or compensable work time. The trial court granted summary judgment to the Company finding that the technicians’ commute time was not “hours worked” for purposes of minimum wage because the Company placed no restriction on what the employees did, or how they used their vehicles, when driving to the first job site or returning home at the end of the day. On appeal, the court reversed and remanded the case to the trial court, ruling the fact that the service technicians are required to carry tools and parts in their personal vehicles during their commutes could conceivably interfere with their ability to use their commute time “effectively for their own purposes” (for example, their vehicles are so filled with tools and parts that they can’t take their child to school on the way to the first job site).

Both of these recent decisions rely on California Supreme Court precedent that has held that “compulsory travel time” must be paid and the amount of control an employer exerts over the workers is determinative.

The full opinions can be downloaded here:
Oliver v. Kinoca Minolta
Gutierrez v. Brand Energy

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