©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 207 7.3.4 Travel time Commuting. Under the FLSA, as amended by the Portal-to-Portal Act, employers need not pay for the time an employee spends traveling to and from work, so long as the travel itself is not integral to the work performed. In California it’s different: travel time is compensable if the employee is subject to the control of the employer, even if the employee is not working. Under this doctrine, even commuting time in California is compensable if the employer requires its employees to travel to work on its buses.76 The Ninth Circuit has highlighted the difference between federal and California law, with the Ninth Circuit holding that where employees were required to use company vehicles for commuting purposes, the commute was not compensable under the federal Employment Commuter Flexibility Act, but was compensable under California law, which requires that employees be paid for all time during which they are subject to the employer’s control.77 A Court of Appeal decision has recognized that, even in California, time spent traveling in an employer-provided vehicle, even one loaded with equipment and tools, is not compensable if using that vehicle is “optional and voluntary.”78 In a 2020 case, the Court of Appeal considered whether service technicians who repair copiers at customer sites were entitled to pay for their commuting time, because they used their personal vehicles to transport company tools and equipment to the customer work sites. The Court of Appeal reversed a summary judgment for the employer, reasoning that if the commuting technicians carried a volume of tools and parts that did not allow the technicians to use their commute time effectively for their own purposes, then they are deemed subject to the employer’s control during that time for purposes of determining hours worked and entitlement to wages.79 In another 2020 travel-time case reversing a summary judgment for the employer, the Court of Appeal addressed Wage Order No. 16, involving construction and other industries. At issue was the pay required for the 30-40 minutes of daily travel from a refinery’s electronic entry gate to the assigned job site. In a suit brought to recover wages for that time, the trial court granted summary judgment for the employer, relying on the CBA’s designation of that travel time as “non-compensable commuting time.” The Court of Appeal reversed, holding that a CBA may not bargain away the nonwaivable right to be paid no less than the minimum wage for employer-mandated travel time. That right appears in section 5(A) of Wage Order 16, which mandates payment of wages, at regular or premium rates, for “employer-mandated travel that occurs after the first location where the employee’s presence is required by the employer.” Section 5(D) provides a CBA exemption, but that exemption applies only to regular and premium rates, and does not waive the separate requirement that employees receive not less than the minimum wage.80 Overnight travel. Under federal law, hours worked do not include non-working travel time spent beyond normal working hours. California is different, treating as hours worked any compulsory travel time, because it is time subject to the control of the employer, regardless of whether the employee actually works during that time.81 7.3.5 On-call time Federal law applies two factors in assessing whether “on call” time is entitled to compensation: (1) the degree to which the on-call employee is free to engage in personal activities and (2) the agreements between the parties.82 In California it’s different. The California DLSE deems irrelevant any agreement between the parties as to whether on-call time is compensable. Instead, the essential test for compensability is simply whether the employer imposed restrictions on the on-call employee’s ability to engage in personal activities so as to render the employee subject to the employer’s control. Employers can minimize the impact of on-call compensability by paying for on-call time at some wage (e.g., the minimum wage) that is lower than the normal wage. Sleeping time. The Court of Appeal has held that ship-board employees who worked 14 consecutive shifts of 12-hour days (followed by 14 days off), and who were otherwise on call, were entitled to pay for all their on-call hours, because of the requirement that they sleep aboard ship and remain within no more than 45 minutes of the
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