This post was authored by Erin Kunze.

Last month, the Court of Appeal for the Third Appellate District of California found that an employee’s time traveling between home and a job site in an employer’s vehicle was not compensable, despite the employer restricting the employee’s activities during the commute time at issue.  Notably, this case analyzed a California wage and hour law on travel time that applies to public sector employers other than counties or charter cities.

In Hernandez v. Pacific Bell Telephone Company, Pacific Bell established a “Home Dispatch Program” by which it allowed employees to take work vehicles home, and to use those vehicles to travel to various job sites without first checking in at a central garage.  The “Home Dispatch Program” was voluntary in nature.  Employees who chose to participate were required to be at their first worksite by 8:00 a.m., and were not compensated for any time before 8:00 a.m. spent driving from their homes to the initial worksite.  Nor were the employees paid for time spent driving home with equipment and tools after their last appointment.  However, during these commutes, participating employees were prohibited from talking on cell phones while driving (even before doing so was illegal), and were prohibited from making personal stops to run errands or drop off or pick up children from school while using the company vehicle.

Employees who did not opt to participate in the Home Dispatch Program were required to commute to and from a company garage each day, where they would pick up and drop off company vehicles.  Such employees were not compensated for their home-to-garage commute time.  Instead, they would be compensated once they arrived at the garage site at 8:00 a.m.

Employees who participated in the Home Dispatch Program brought suit against Pacific Bell claiming that the control Pacific Bell exerted over their commute time, while using a company vehicle, rendered the time compensable.  Relying on State law, the Court determined that, because the Home Dispatch Program was optional and employees were not required to use the company vehicle to commute to and from their worksites, they were not under the employer’s control, and the travel time was not compensatory.  The Court further articulated that carrying tools and equipment in company vehicles during the home-to-site commute times did not make the time compensatory because employees were not required to engage in any effort or extra time to effectuate the transport.  Notably, employees who participated in the Program were compensated when they were required to travel to and from the central garage to load equipment and tools needed for that week.

While this case does not necessarily change existing law, it clarifies that prohibiting employees from stopping for personal errands or carrying other passengers while commuting in an employer’s vehicle does not necessarily render the commute time compensatory under California law.  Rather, the question will be whether the use of the employer’s vehicle for that purpose, with the corresponding restrictions, was required by the employer.  In this case, because the Home Dispatch Program was optional and voluntary, employees were not entitled to compensation for their commute to and from various worksites at the start and end of the otherwise regular workday using a company vehicle.

We encourage public agencies to consult legal counsel to assess whether and how this case impacts the agency or its existing rules.

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Photo of Erin Kunze Erin Kunze

Erin provides advice and counsel to Liebert Cassidy Whitmore’s public sector and nonprofit organization clients in the areas of labor relations, governance, and employee pension and health benefits.  She regularly advises clients on a broad spectrum of employment law issues, including workplace policies…

Erin provides advice and counsel to Liebert Cassidy Whitmore’s public sector and nonprofit organization clients in the areas of labor relations, governance, and employee pension and health benefits.  She regularly advises clients on a broad spectrum of employment law issues, including workplace policies, disability accommodations, unlawful harassment, workplace investigations, and employee discipline.

In the area of labor relations, Erin regularly audits collective bargaining agreements and employee relations rules to advise clients on current legal standards and best practices.  She additionally represents clients in negotiations and labor disputes, providing legal counsel through mediation, arbitration and before administrative agencies.

As a member of the Retirement, Health and Disability Practice, Erin advises clients on CalPERS enrollment and retired annuitant issues, as well as issues pertaining to the Affordable Care Act (ACA) and Public Employees’ Medical Hospital Care Act (PEMHCA) compliance.

As a member of the firm’s Business & Facilities Practice, Erin assists academic institutions and nonprofit clients in complying with foundation, donation, and exempt organization requirements.  She provides advice and counsel on contractual obligations and vendor agreements, and she regularly advises clients on issues specific to community college district foundations, including those with auxiliary organization status.

Prior to joining the firm, Erin developed diverse legal experience through her work with various criminal justice and human rights organizations, including the International Criminal Tribunal for the Former Yugoslavia in the Netherlands; Hastings College of Law’s Center for Gender and Refugee Studies; and the Political Asylum/Immigration Representation Project (PAIR).  Erin has also worked with a number of nonprofit arts organizations including California Lawyers for the Arts, Volunteer Lawyers for the Arts of Massachusetts, and the New England Foundation for the Arts. With those agencies, Erin worked on programmatic matters as well as issues relating to nonprofit incorporation, governance, and development.