Unpaid Travel & On-Call Time

Travel Time is Compensable

Time spent traveling to and from work generally is not compensable or counted toward hours of work under California law. But travel time during work or otherwise at the employer’s direction counts as hours worked. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 587 (where employer required its employees to meet at designated places to take its buses to work and prohibited them from using their own transportation, they were “subject to the control of an employer,” and the time spent traveling on the buses was compensable as “hours worked.”)

The California law requires wages to be paid for all hours the employee is engaged in travel. The state law definition of “hours worked” does not distinguish between hours worked during “normal” working hours or hours worked outside “normal” working hours, nor does it distinguish between hours worked in connection with an overnight out-of-town assignment or hours worked in connection with a one-day out-of-town assignment. Under state law, if an employee requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event.

The Department of Labor Standards Enforcement has recognized that time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is under such circumstances, time spent carrying out the employer’s directives, and thus, can only be characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable “hours worked”.

On the other hand, time spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference in order to sightsee), is not compensable. If the employee’s travel from his home to the airport is the same or substantially the same as the distance (and time) between his home and usual place of reporting for work, the travel time would not begin until the employee reached the airport. The employee must be paid for all hours spent between the time he arrives at the airport and the time he arrives at his hotel. No further “travel” hours are incurred after the employee reaches his hotel and is then free to choose the place where he will go.

The employer may establish a different pay scale for travel time (not less than minimum wage) as opposed to the regular work time rate. The employee must be informed of the different pay rate for travel before the travel begins. For purposes of determining the regular rate of pay for overtime work under the circumstances where a different rate is applied to travel time, the State of California adopts the “weighted average” method.

On-Call Time is Compensable

In Mendiola v. CPS Sec. Solutions, Inc. (2015) 60 Cal.4th 833, the Supreme Court held that security guard employees in that case were subject to the control of the employer. The Court found that guards that were required to reside in a trailer provided by CPS, and required to remain within certain geographical boundaries, were entitled to compensation for on-call time.

The Supreme Court in Mendiola considered the level of the employer’s control over its employees and whether the “[o]n-call waiting time . . . is spent primarily for the benefit of the employer and its business.”

The DLSE enforcement policy has consistently held that hours for which an employee has been hired to do nothing or merely to wait for something to happen are hours subject to the control of the employer, and constitute hours worked. This longstanding interpretation is based on U.S. Supreme Court case law and consistent with the California Supreme Court’s holdings in Morillion and Mendiola. If, in the case of “standby” or “on call” status, the restrictions placed on the time of the employee are such that the employee is unable effectively to engage in private pursuits, the time is subject to the control of the employer and constitutes hours worked.

If you have not been compensated for your travel time or on-call time, contact us. We have successfully helped numerous workers recover the wages they earned. In a recent case involving oil rig workers who were not compensated for on-call time, we were able to settle their claims for a seven-figure amount. Let us help you, too.