Hunton Employment & Labor Perspectives

In Hernandez v. Pacific Bell Co., a California court held that employees who drive between their homes and a client worksite (in this case, a customer’s residence) using a company vehicle under the company’s voluntary vehicle take-home program need not be compensated for the commute time.

Pacific Bell premises technicians install and repair internet services at customer’s homes.  Prior to 2009, the technicians were required to pick up a company-owned vehicle at a Pacific Bell garage, report to customers’ homes and then return the vehicle back to the garage at the end of the day.  The technicians worked an eight-hour shift and were paid from the time they arrived at the Pacific Bell garage until they returned the vehicle.  In 2009, the company initiated its Home Dispatch Program (HDP), which allowed the technicians to take the vehicles and tools and equipment home each night and go straight to the customer’s residence at the start of each shift.  The HDP program was completely voluntary, and the employees who chose to participate were required to go to the garage once a week to pick up the necessary tools and equipment.  Under the HDP, the technicians were paid from the time they arrived at the first customer’s residence until they left the last customer’s residence.  In other words, they were not paid to travel between their home and the customer’s residence at the start of the workday.  They were, however, paid to load their company vehicles with the equipment and tools on their weekly garage visit.

Under the HDP, use of the company vehicle was restricted – it could only be used for business purposes, only authorized persons could drive in it, and employees were not allowed to talk on a cell phone while driving.

Hernandez was filed by two premises technicians, on behalf of themselves and former and current premises technicians, alleging they should have been paid for the time spent commuting from their homes to the first customer’s residence, and from the last customer’s residence back home, when using a company-owned vehicle and transporting company-owned equipment.

The court analyzed the plaintiffs’ claims under the Industrial Welfare Commission’s definition of “hours worked”:  (1)”the time during which an employee is subject to the control of an employer,” and (2) the time an employee is “suffered or permitted to work, whether or not required to do so.”  Relying on state and federal cases analyzing California law, the court found that the plaintiffs were not “subject to the control of an employer” because the HDP was completely voluntary, and thus, the employees were not required to use company vehicles.   The court also found that the employees were not “suffered or permitted to work,” simply because they carried equipment and tools during their commute.  To this effect, the court found that “the plaintiffs are indeed paid for the acts of delivering and installing the equipment,” and merely commuting with the equipment and tools is incidental to performing their job.

Thus, the court found that the commute time under the HDP was not compensable due to the voluntary nature of the program.

If you are a California employer with a vehicle take-home program, make sure to have an attorney review the policy to ensure it complies with California wage and hour laws.