It’s commute time. You’re traveling to work, listening to the radio. You’re clocking about 25 miles an hour on the freeway when you accidentally bump the car in front of you. No one’s hurt, but you know this will impact your insurance rates. Did you also know your employer could be responsible for your commute time? Sometimes, employers are responsible for paying the employee for the commute time, and for accidents while driving to/from work.
Must My Employer Pay for My Commute Time?
Usually, the answer is no. Recent court decisions, however, are creating several exceptions to the general rule. Employers must pay employees for time traveling to work-related functions. Employers must pay employees for all “hours worked.” This includes any time the employee is suffered or permitted to work. It also includes time the employee is subject to the employers control. Traditionally, traveling to and from work is not considered part of the job. In 1947, the Department of Labor adopted the Portal-to-Portal Act, which modified the federal laws regulating minimum wage and overtime.
The Portal-to-Portal Act (secs. 1–13, 61 Stat. 84–89, 29 U.S.C. 251–262) eliminates from working time certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice.
For the most part, California follows similar rules. For example, employers don’t have to pay for commute time when the employer does not control the method and means of transportation. Employees who “commute to work on their own decide when to leave, which route to take to work, and which mode of transportation to use. By commuting on their own, employees may choose and may be able to run errands before work and to leave from work early for personal appointments.” Therefore, the commute time is not compensable.
When an employee must report to the employer’s business office before going to the actual worksite, the employee is “subject to the control of the employer” from the moment of reporting to the office until the employee is released to proceed directly to his or her home. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575.
Is My Employer Responsible for an Accident During Commute Time?
If you asked this question 10 years ago, I would have said no. However, in 2013, a court said that an employees was “acting within the scope of employment” when she got into an accident while running personal errands on her commute home because an employee was required to use her car for work (Moradi v. Marsh USA, Inc., 219 Cal. App. 4th 886). Moradi worked for an insurance broker. She had to drive her personal vehicle to work so she could do work errands throughout the day. Because the employer required her to have her vehicle at work, the employer could be responsible for accidents while driving to/from work.
In 2017, another court followed the same logic.(Sumrall v. Modern Alloys, Inc.). In Summrall,
a construction company paid its employee only for the hours he worked at a jobsite. But rather than driving his vehicle directly from his home to the jobsite, the company expected the employee to first commute to the company’s “yard.” The employee would then drive a company truck from the yard to the jobsite, transporting coworkers and materials. One day, while driving from his home to the yard, the employee collided with a motorcyclist, who sued the construction company.
If the employee’s “worksite” was the “yard,” then the employee was commuting on his own time, in his own vehicle, and therefore the employer would not be liable. However, if the employee’s “worksite” was the actual jobsite, then traveling to the yard to pick up supplies and workers was a part of the employee’s job responsibilities, and the employer could be liable for accidents occurring on the way to the yard.
Neither Moradi nor Sumrall addressed whether the employee had to be paid for the commute time. Whether the time is compensable is a slightly different analysis from whether the employer can be responsible for an accident occurring during the commute. Employers, however, need to be aware of both issues when creating policies and practices for employees driving to/from work, and to/from job sites.
Travel and Commute Time Policies
If you have questions about whether your commute time is compensable, or if you would like to discuss your travel time policies, contact the Nuddleman Law Firm, P.C. and speak with a knowledgeable employment attorney.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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