Our hourly employees report to work at the office and then travel from one work location to another using their own car, and we pay for mileage. An employee is now claiming that we have to pay for the driving time. Why would we have to pay for travel time in addition to reimbursing the employee for mileage?
There continues to be confusion about how to pay for travel time. Travel time and mileage reimbursement are two separate issues.
An employer is obligated to compensate for time worked and reimburse an employee for any expenses incurred while performing the duties of the job.
As described in your question, when an employee is traveling at your direction and control, what is thought of as “travel” time is actually considered “hours worked,” even if no productive work is performed.
Whether an employer must compensate for travel time and/or expense reimbursement is predicated on the underlying reason for the travel.
First determine whether the time meets the definition of hours worked found in the Industrial Welfare Commission, Section 2:
“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.
Unless special circumstances exist, travel to the first job location in a day is not considered work time. Travel beyond reasonable time and distances or when an employee delivers goods, tools, equipment and materials to a job site may nevertheless require compensation.
Determining whether travel time meets the definition of hours worked is a fact-driven decision that requires a comprehensive review of each circumstance. The Division of Labor Standards Enforcement (DLSE) has provided guidance in several opinion letters found at the www.dir.ca.gov website. See opinion letters numbered 2003.04.22, 2002.01.29 and 2002.02.21.
Once it is determined that the travel is being performed at the direction and control of the employer, that time becomes hours worked.
It then follows that if an employee is working for an employer and is required to expend money to perform his/her duties, as in driving his/her own car, the employer is obligated to reimburse the employee pursuant to Labor Code Section 2802, quoted in part:
2802. (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.
While DLSE opinion letters are useful for guidance, do not rely upon DLSE opinion letters as legal precedent. Courts need not follow the opinions. Consult with legal counsel to determine how to properly pay and reimburse for travel time.
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.