Travel Time is Not Compensable

California Employees Must Be Paid for All “Hours Worked”

California protects workers’ rights to compensation. It has a very broad definition of “hours worked.” It includes any time an employee is suffered or permitted to work and any hours an employee is subject to the employer’s control. An employer usually does not have to pay an employee for the regular commute to and from work. Employers usually have to pay when an employee travels from one site to another. Employers may have to pay employees if the employer requires the employee to run errands or engage in other business before reaching the job site. Does the employer have to pay if the employee commutes in a vehicle while carrying company tools?

In Hernandez v. Pacific Bell Telephone Company Plaintiffs sought compensation for the time they spent traveling in an employer-provided vehicle–loaded with equipment and tools–between their homes and a customer’s residence (the worksite) under an optional and voluntary Home Dispatch Program. The trial court concluded the travel time was not compensable. The Court of Appeal agreed and affirmed, finding:

  1. the Home Dispatch Program was not compulsory; and
  2. simply transporting tools and equipment during commute time was not compensable work where no effort or extra time is required to effectuate the transport.

Travel Time Was Not Subject to Employer’s Control

The plaintiffs argued that the travel time to and from the technician’s home and worksite satisfied the “control test.” Plaintiffs focused on the numerous restrictions placed on technicians under the Home Dispatch Program. Technicians could not use the company vehicle personal matters and only authorized persons could ride in or drive the vehicle. Technicians had to drive directly between home and the worksite; they could not stop along the way to run errands or drop off or pick up children from school or talk on a cell phone while driving. Plaintiffs argued by imposing these restrictions, the employer controlled the commute.

The employer pointed out that the Home Dispatch Program was voluntary. Employees were not required to bring the company vehicle home. Employees could have picked up the vehicle at the company site each day. The court agreed with Pacific Bell:

[Plaintiffs] do not address the cases such as Overton, Alcantar, and Novoa in which the courts found commute time in an employer-provided vehicle is not compensable when the employee is not required to use that transportation. Nor do they address the emphasis in Morillion on the compulsory nature of the transportation by bus or the court’s observation “that employers do not risk paying employees for their travel time merely by providing them transportation. Time employees spend traveling on transportation that an employer provides but does not require its employees to use may not be compensable as `hours worked.'”

Hernandez at p.141.

Plaintiffs also tried to analogize their situation to cases where employees were required to deliver tools or equipment to the job site. The court was not persuaded. While employees were required to bring tools necessary to perform the work, every employee has to do that even if the “tools” consist of a laptop or a hammer. Merely bringing the tools necessary to perform the work does not “suffer or permit” the employee to work.

Deciding which hours are compensable or not can be difficult. Federal and state laws do not always agree, and Labor Commissioner Opinion Letters are unreliable. To correctly analyze whether an employee is entitled to compensation, contact the Nuddleman Law Firm, P.C.

Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Non-Solicitation Clause Unenforceable

Court Decision Casts Doubt on Non-Solicitation Clauses

California is known for its strong prohibition on almost all forms of “non-compete” clauses. The Business and Professions Code states that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void” (§16600). California courts have consistently held this statute makes it illegal for employers to make workers sign contracts limiting their freedom to work for competitors or in certain industries after termination.

However, the legality of “non-solicitation” clauses has been less clear. A new case from the Court of Appeal clarifies that certain types of non-solicitation clauses are illegal, ruling that certain non-solicitation clauses also violate Section 16600.

What AMN Healthcare v. Aya Healthcare Services Means for Employers and Employees

This case involved recruiters who signed a contract preventing them from “soliciting any employee” to leave the company for a year after they left the company. It did not stop employees from working for a competitor. It just prevented former employees from soliciting AMN’s current employees.

The court held this contract was still illegal, primarily because as recruiters, their sole job is to solicit prospective employees. By limiting who the recruiters could seek, the contract violated Section 16600. While this may seem like a limited case, it could have further repercussions.

The Court set the stage for further restrictions and confirmed the “rule of reasonableness” does not apply in non-compete agreements. It is important for employers to review any NDAs or confidentiality agreements they utilize to ensure that they don’t run afoul of the law, and contact our offices if there is any uncertainty. Employers can still prohibit employees from using confidential trade secrets to solicit former co-workers.

California law governing non-competes and all other sorts of employment conditions can be onerous and confusing, for both employees and employers. If you need assistance drafting employment contracts or feel your employer made you sign an illegal contract, contact the Nuddleman Law Firm, P.C. for legal guidance.

Written by J.T. Keane, edited by Robert Nuddleman; Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.