California Overtime—Yes, Travel Time Counts

Alviso, CAMary Alice has a travel time issue and believes she and her fellow employees should be compensated under the California overtime laws.

“Our crew meets up at the office and piles into the company van to the job site,” says Mary Alice. “Our boss says he does not have to pay us for the first hour in the van - he refers to this as commute time. For example, if we travel to a job in Santa Cruz, we wouldn’t get paid because it would only take half an hour. But traveling to Fresno would take up to four hours so we should be paid three hours travel time.”

Actually, Mary Alice and crew should be paid for four hours travel time, and likely overtime…

Mary Alice has been working for Washington Inventory Services for two years and says she gets different rates of pay, depending upon the job. She receives a regular hourly rate when counting inventory, but travel time, wait time and audit time constitutes minimum wage. Counting the inventory comprises anywhere from 25-45 hours per week, yet Mary Alice regularly pulls in 50-hour weeks.

She says that a typical job in Fresno would take up to 16 hours including California overtime but she would get only three hours overtime compensation. “When the clock hits midnight it resets so I don’t get those overtime hours either,” Mary Alice says, adding that the company’s managers were paid overtime from the time they left the office. (Mary isn’t sure if they are classified as exempt, which might be another violation of the California labor code.)

“My fellow co-workers and I always got paid from the time we got to the job site. But we should get paid from the time we get to the office until we leave the office at the end of the day, regardless whether we go to Fresno or across the street.” She is right.

The company has a complicated pay system that only a wage and hour attorney can likely understand. Mary Alice says they are paid by adding up totals of different pay rates and dividing the totals by the number of hours worked, which gives her average rate of pay. “Sometimes that would be less than my regular rate of pay,” she says. “If they only used my inventory counting rate and went by that hourly rate as my overtime, I would get a lot more money.” Interesting: Is creative accounting shorting their employees’ paychecks?

It’s complicated, unless you are California labor law attorney. Under AB 2677, increased employer payment contributions that result in a lower hourly straight time or overtime wage do not constitute a violation of the applicable prevailing wage determination as long as certain specified conditions are met.

The State Of California’s Department of Industrial Relations and Division of Labor Standards Enforcement website states the following, and makes it very clear that Mary Alice and her co-workers should be paid travel time. And they are owed a lot of overtime pay.

Travel time is considered compensable work hours where the employer requires its employees to meet at a designated place, use the employer’s transportation to and from the work site and prohibits employees from using their own transportation (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575).

Mary Alice and co-workers meet at the office and use the employer’s van.
Compulsory travel time longer than the employee’s normal commute is considered compensable time.

Mary Alice and co-workers often spend eight hours travel time in one day driving to a job in Fresno, for instance.
It goes on to say the following:

Travel time to a job site within reasonable proximity of the employee’s regular work site is not compensable. If an employee has no regular job site, travel time to the new job site each day is not compensable. If an employee has a temporary work location change, the employee must be compensated for any additional time required to travel to the new job site in excess of the employee’s normal commute time.

The definition of hours worked is found in the Industrial Welfare Commission Orders and means the time during which the 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. State law does not distinguish between hours worked during the “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. Under state law, if an employer 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.

Mary Alice intends to show her boss the above travel rules, as spelled out in the California labor code.