I thought an employee’s first commute to work is unpaid, but my employees drive their own vehicles, and deliver tools and equipment to the job site. Is this compensable time, and if so, what law states that I have to pay for this time?
The law is not so specific that it defines all situations in such detail. The obligation to compensate an employee depends upon whether the time meets the definition of hours worked found in the Industrial Welfare Commission Orders, Section 2, Definitions.
“Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.
Performing Job Duties
The Division of Labor Standards Enforcement (DLSE) gives guidance about travel time in its Opinion Letter 2003.04.22, stating in part: “Also, if the travel involved the employee being required to deliver any equipment, goods or materials for the employer, the travel, no matter how extended, would be compensable.”
On the basis of this definition, when an employer directs an employee to deliver tools and equipment, the employee is working and the hours are compensable.
On the other hand, if the employee is simply driving to the first place he/she is to report for work without any additional obligations imposed by the employer, that commute time is not compensable.
When an employee is performing a duty for the employer, the fact that it is the employee’s first commute of the day does not negate the obligation to pay for all hours worked.
This means whether the employees are driving their own vehicle or a company vehicle, they are on the clock when they commence driving to the work location. Keep in mind that if the employees are driving their own vehicle, mileage reimbursement will be required.
The fact that a company provides a vehicle for convenience does not necessarily equate to owing for the first commute. The issue of how much control and direction exists is the deciding factor.
One court determined that an employee driving a company vehicle was entitled to compensation because the employer exerted control over the commute and considered the following restrictions:
• He was required to drive a company vehicle;
• He could not use the company vehicle for personal errands;
• He could use the company vehicle only to drive to and from his jobs;
• He could not transport any passengers;
• He had to have his cell phone turned on at all times, but could not use his cell phone while driving, except for company business.
Develop a Policy
Deciding what is and is not hours worked can be complicated. Develop a policy about travel time payment and make sure your managers/supervisors are aware that asking an employee to deliver equipment to a job site may create a time and mileage obligation for the company.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.