Question: I am required to use a company-provided van for work which is loaded with tools and equipment I need to do my job. I can take the van home at night so that I can drive directly to my first jobsite in the morning. I am not paid for the time I spend driving to the jobsite in the morning or driving home at the end of the workday. Is my employer violating the law?
Answer: Probably not. The California Court of Appeals recently issued a decision that commute time under a similar “home-start program” is not compensable time. However, this decision did not address situations in which the commute to the jobsite is lengthy, and commute time in those situations may be compensable.
In the recent court case, employees performed work at customer homes and were required to drive company vehicles containing tools and equipment. Employees could drive to the employer’s garage and pick up the company vehicle, and be paid for the time spent driving to the first jobsite and for the time spent driving from the final jobsite to the garage. Or they could participate in a “home-start program” in which they could drive the company vehicles to and from home each day. Employees who chose to participate in the home-start program had to arrive at the first worksite by 8:00 a.m. and were not permitted to run any personal errands in the company vehicle. They were not paid for the commute time at the beginning or end of the workday. In determining whether commute time under a voluntary home-start program is compensable under California law, the court considered whether: (1) the employee is under the employer’s control; and (2) the employee is “suffered and permitted to work” by the employer.
First, the court held that the time an employee spends commuting must be paid if the employer directs how the commute time is spent. Employers are not required to pay employees for their commute time merely by providing them transportation, even if the employer imposes restrictions on the use of the transportation. Only when the employer requires employees to use the provided transportation may this commuting time be considered compensable work time. Because the employees in this case were not required to participate in the home-start program, the time spent commuting before and after the workday was not compensable.
Second, the court held that an employee is “suffered or permitted to work” when the employee is actually working but is not subject to the employer’s control. The employees here argued that they were working while driving to and from home because they were transporting tools and equipment that were necessary for their job. The court rejected this argument explaining that the incidental transportation of tools, which does not add time or exertion to a commute, is not compensable. As the court stated, “[I]f carrying equipment necessary for the job were always compensable, every employee who carries a briefcase of work documents or an electronic device to access work e-mails to and from work would need to be compensated for commute time.”
When an employee is not required to take the company vehicle home and no extra effort or time is required to transport the tools and equipment, the commute time is not compensable time. However, long distance commutes in a company vehicle may be compensable, so it is best to consult with your attorney in those situations.