For roughly 20 years, California employers employing service technicians, repairmen, etc. could allow their employees to commute to/from their homes to jobsites without much concern that those commutes were compensable.   Regardless of whether the employer drove an employer’s vehicle or his own, under the “control” test as long as the employer did not dictate the time and manner of the commute or restrict the employee’s ability to run personal errands, etc., using an employer’s vehicle or carrying employer tools and parts from home to a jobsite did not transform the employee’s commute into compensable worktime.  A recent California Court of Appeal decision, however, should cause employers to exercise greater caution.

In Oliver v. Konica Minolta, the Court of Appeal held that whether uncompensable commute time transforms into compensable worktime may turn on something as esoteric as the size/capacity of the vehicle driven.  If the employee’s vehicle (whether company owned or personal) was so small and filled with tools and equipment that the employee could not (for example) stop and shop for groceries, then this fact might cause a court to conclude that the employee’s commute time could not be “effectively used for the employee’s own purposes” such that the employee is under the “control” of the employer.  If the trial court made such a determination, the employee’s commute time is compensable.  To the extent the employee is using his personal vehicle, Oliver even hinted that an employee’s time spent unloading and loading his vehicle on weekends so that he could use the vehicle for family outings might also be compensable.

Accordingly, at a minimum, any California employer who requires his employees to drive a vehicle (personal or company owned) loaded with parts, tools, etc. should be mindful not to entirely fill the vehicle such that the vehicle otherwise lacks substantive storage capacity for groceries, etc.  Otherwise, that employer may find himself on the losing end of a wage and hour lawsuit.

Douglas A. Plazak is a shareholder of Reid & Hellyer, APC where he practices business litigation and employment law. For his full bio, visit: Douglas A. Plazak

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