Over the past 12 months, many employees have started to return to work on a site other than their home, although some remain remote or partially remote. Employers may need a reminder about employee commute time.
Under California wage orders, hours worked are defined as the time during which an employee is subject to the employer’s control and includes time during which the employee is “enduring and permitted” to work. Typically, this means that time spent by an employee traveling to the office or similar workplace is not compensable.
However, there are certain circumstances where time spent traveling to a construction site may be considered compensable. Here is a refresher on some of the travel time issues.
Transportation provided by employer
In certain circumstances, travel to a workplace by employer-provided transportation may be compensable. In a 2000 case, the California Supreme Court ruled that when an employer requires its employees to meet at a designated location, uses the employer’s transportation to and from the workplace, and prohibits employees from use their own means of transport, the time spent on the employer transport would be compensable.
However, if the use of transport provided by the employer is completely voluntary, the time spent is not compensable.
Travel requiring significant distance between the assigned workplace and a remote workplace to report for work in the short term may be compensable. This will partly depend on the length of assignment of the new site.
According to the California Commissioner of Labor, travel time is measured as the difference between the time it normally takes the employee to travel from their home to the assigned job site and the time it takes the employee to to travel from his home to the remote site. This could be calculated as non-compensable time if, for example, the travel time from the employee’s home to the remote workplace is less than the employee’s normal travel time.
No regular construction
Some employees in certain occupations, by the nature of the industry and occupation, are not assigned to a specific work location and reasonably expect that they will be regularly required to travel reasonable distances daily to go to construction sites. If an employee does not have a regular job site, the daily travel time to the new job site is not compensable.
As a reminder, compensation paid for driving time is separate from any reimbursement obligations an employer may have for mileage and other business expenses when an employee travels for work.
Andrew J. Kozlow is an attorney with Jackson Lewis in San Francisco. © 2022 Jackson Lewis. All rights reserved. Republished with permission.