Recently, a California appellate court shed some light on when time spent commuting to and from work may constitute compensable “hours worked.”  In Oliver v. Konica Minolta Business Solutions U.S.A., INC., the court found that employees who are required to transport employer-provided tools and parts in their personal vehicles are sufficiently “subject to the employer's control” during their commute to and from work if such requirement prevents the employees from using their commute time for personal pursuits.

Background

Konica Minolta Business Solutions U.S.A., INC. (“Konica”) provides businesses with various printing, copying, and scanning products.  Plaintiffs worked as service technicians for Konica.  They used their personal vehicles to travel to customers' locations to service the products provided to the customer by Konica.

Konica provided Plaintiffs with the tools and parts required to service Konica's products at the customers' locations.  Pursuant to Konica's company policy, Plaintiffs were required to drive a vehicle with at least 25 cubic feet of “lockable cargo space” to transport and store the tools and parts necessary to service Konica's products at the customers' locations.  Company policy also required Plaintiffs to store a sufficient number of parts in their vehicles to properly service Konica's products at customers' locations.  Manager approval was required for any exception to Konica's parts storage policy. 

While company policy required Plaintiffs to drive their personal vehicles to and from the worksites, Plaintiffs were not prohibited from engaging in personal endeavors during their commutes.  Plaintiffs were expected to arrive at the first work location by 8am and to leave the last work location by 5pm.  Konica compensated Plaintiffs for regular hours worked between 8am and 5pm, including travel time during that period.

Plaintiff Oliver filed a putative class action seeking compensation for time spent commuting to the first work location of the day and commuting home from the last work location of the day, as well as reimbursement for mileage during those commutes.  Plaintiff alleged that Konica had violated various provisions of the California Labor Code, including section 1194 by not paying overtime wages, section 226 by not providing accurate wage statements, and section 2802 by not reimbursing for work related expenses.  Plaintiff further alleged violation of the unfair competition law and later amended the complaint to include a claim for civil penalties under the Private Attorneys General Act of 2004 (“PAGA”).

Plaintiffs and Konica filed motions for summary judgment on the issues of whether Plaintiffs were entitled to wages for time spent commuting to and from work and whether Konica was required to reimburse Plaintiffs for mileage incurred during their commute.  The trial court granted Konica's motion, finding that time spent commuting did not constitute “hours worked” and therefore Plaintiffs were not entitled to compensation or reimbursement for mileage incurred during that time.  Plaintiffs appealed.

Appellate Court's Decision

The court considered whether time spent commuting from Plaintiffs' non-work location to the first worksite of the day and time spent commuting from the last worksite back to Plaintiffs' non-work location constitutes “hours worked” within the meaning of Wage Order No. 4.

Wage Order No. 4 defines “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”  Time during which an employee is subject to the employer's control and time an employee is suffered or permitted to work are independent factors in determining whether such time is compensable “hours worked.”

In determining that genuine issues of material fact existed as to whether Plaintiffs' commute time was compensable “hours worked,” the court relied on relevant precedent regarding employer control.  In Morillion v. Royal Packing Co., the California Supreme Court found that time spent commuting to and from work is generally not compensable, unless the travel time is compulsory.  Because the employer in Morillion required employees to meet at a designated area to transport them to and from the worksite in an employer-provided bus, the Court found the employees were subject to the employer's control and therefore time spent commuting was compensable “hours worked.”

In another case, Hernandez v. Pacific Bell Telephone Co., a California appellate court found that employees who participated in an optional company vehicle program were not entitled to compensation for commute time.  According to the court, the employees were not subject to the employer's control because they were not required to participate in the company vehicle program.

Most recently, in Frlekin v. Apple Inc., the California Supreme Court found that employees were entitled to compensation for time spent waiting for and undergoing mandatory searches of their personal bags prior to exiting the employer's premises.  In Frlekin, the Court recognized that the mandatory versus optional distinction applied in commuting cases like Morillion and Hernandez was not dispositive where the issue was the level of employer control at the worksite where the employer's business interests are greater.

Based on guidance from these prior cases regarding employer control, the court found that material factual disputes existed as to whether Plaintiffs were able to use their commute time effectively for their own purposes.  According to the court, the record was unclear as to whether Plaintiffs were required to carry parts and tools in their vehicles and whether the amount of parts and tools was so voluminous as to prevent Plaintiffs from using commute time effectively for their own purposes.  Evidence indicated that Konica may not have enforced its vehicle storage policy as some service technicians reported driving smaller cars such as a Toyota Corolla and Honda Civic with as little as 11 to 14 cubic feet of storage space.  Additionally, some service technicians testified that their vehicles were so full of parts and tools that they could not see out the back window or they had to fold down the back seats in the car to accommodate the tools and parts.  Other service technicians testified that due to the amount of tools and parts in their personal vehicles, they had to unload the tools and parts in order to use the car for personal pursuits.

The court found that if carrying tools and parts to and from work is optional, Plaintiffs are not subject to the employer's control and therefore not entitled to compensation.  Further, even if Plaintiffs are required to carry tools and parts in their vehicles, commute time is not compensable “hours worked” if Plaintiffs could effectively use the time for personal endeavors.

Because genuine issues of material fact existed under the “control test,” the court did not consider whether the “suffered or permitted to work” factor.  Regarding whether Plaintiffs are entitled to reimbursement for mileage incurred during their commute, the court found, without analysis, that genuine issues of material fact existed and therefore reversed summary judgment in Konica's favor.

Significance of the Court's Decision

The law regarding whether time spent commuting to and from work constitutes compensable “hours worked” is very factually driven.  This decision sheds some light on the issue—commute time is likely compensable “hours worked” where employees are required to transport employer-owned and provided tools and parts in the employees' personal vehicles and such requirement prevents employees from using commute time effectively for their own purpose.  More concrete guidance is not yet established, however, since this case now returns to the trial court for further adjudication.  This firm will continue to monitor the issue and provide any further relevant updates.