August 8, 2020

Volume X, Number 221

August 07, 2020

Subscribe to Latest Legal News and Analysis

August 06, 2020

Subscribe to Latest Legal News and Analysis

August 05, 2020

Subscribe to Latest Legal News and Analysis

Does the Car You Drive Impact Whether Your Commute Is Compensable? The CA Court of Appeal Says “Maybe”

Employee commute time in California generally is not compensable as “time worked” unless the employee is subject to the employer’s control and unable to use that time for his or her own purposes.  But is an employee subject to the employer’s control if she is required to carry her employer’s equipment and tools in her personal vehicle?  According to a California Court of Appeal, the answer could depend on the size of the vehicle.

The case is Oliver v. Konica Minolta Business Solutions, USA, Inc., and the plaintiffs were service technicians who were required to drive their personal vehicles to customer sites to perform repairs on printers and other office equipment.  The technicians did not report to an office, but instead started their workdays by driving from home to their first customer location.  After visiting their first customer location, the technicians were paid for their drive time and mileage throughout the day, until their last customer of the day.  The technicians were not paid for their “commute time”—the time spent driving from their homes to the first customer location at the start of the day, and from the last customer location back their homes at the end of the day.

The technicians claimed they should be paid for their “commute time” because the employer required them to carry equipment and tools that prevented them from using that time for their own purposes.  The trial court granted summary judgment for the employer, but the Court of Appeal reversed, finding triable issues of fact.

The Court of Appeal’s decision essentially came down to the size of the technician’s cars.  A company policy required technicians to drive cars with at least twenty-five cubic feet of lockable cargo space, but the company did not enforce this policy.  Instead, technicians were allowed to drive Honda Civics, Toyota Corollas, Volkswagen Beetles, and an Audi TT coupe, some of which had less than half the storage space required by the policy.  Although the company did not have any policy restricting technicians from using their cars for personal pursuits during their commutes, several technicians testified that their cars were nearly full with tools and had to be unloaded before they could be used for personal reasons.  Based in part on this testimony, the Court of Appeal concluded, “if a service technician was required during the commute to carry a volume of tools and parts that did not allow the service technician to use the time effectively for the service technician’s own purposes, then the technician would be subject to the control of defendant for purposes of determining hours worked and entitlement to wages.”

This case highlights how important it is for employers to consistently and uniformly enforce their policies.  Consider how this case may have turned out differently if the employer had enforced its storage space policy.

  1. First, that policy, which appears to have anticipated the possibility that the required equipment and tools would monopolize the space of a smaller vehicle, could have foreclosed claims that the employees were unable to use their vehicles for their own purposes.

  2. Second, given that the company did not enforce its own policy, the Court of Appeal gave no consideration to the fact that the employees who claimed that they were unable to use their vehicles for personal pursuits were violating the company’s storage space policy.

  3. Third, by setting out storage requirements that were significantly greater than the storage in the actual vehicles used by some of the technicians, the policy may have actually supported the technicians’ claims that their cars were nearly full with equipment and tools.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 196


About this Author

Andrew Quigley Employment Lawyer Hunton Andrews Kurth Law Firm

Andrew’s practice focuses on employment litigation, employment advice, and counseling.

Andrew is an associate on the labor and employment team. He represents employers in state and federal courts and in administrative proceedings. Andrew litigates wage and hour class and collective actions, California representative PAGA actions, and single- and multi-plaintiff cases involving claims of discrimination, harassment, retaliation, and wrongful termination. He advises employers on a variety of matters, including company policies, compensation practices, employee classifications,...

213 532 2121
Roland M. Juarez Employment & Labor Attorney Hunton Andrews Kurth Los Angeles, CA

Roland’s practice focuses exclusively on employment and labor law.

Roland has exclusively handled employment cases since 1992. He was named a 2020 Top Minority Attorney in Los Angeles and a 2019 Top Litigator & Trial Lawyer, both by the Los Angeles Business Journal; a California Labor and Employment Star and was nominated as California's top Labor & Employment Litigation Attorney in 2019, both by Benchmark Litigation. Hunton’s California Employment Group was also nominated as the California Employment Group of the Year in 2019 by Benchmark. Roland’s experience includes class actions, non-compete, non-solicitation and employee raiding cases, discrimination, harassment, disability, wage and hour, PAGA and Title III website accessibility cases. He has numerous recent trial and arbitration wins and regularly practices in state and federal courts and JAMS arbitrations in California. 

Roland is a contributing author to the firm’s Employment & Labor Perspectives blog. He also serves as the Co-Head of Hunton Andrews Kurth’s Unfair Competition and Information Protection Task Force. He is also a member of the Firm’s national associates committee. Roland is admitted to practice before the U.S. Courts of Appeals for the 5th, 9th and 11th Circuits; U.S. District Courts for the Northern, Southern, Eastern and Central Districts of California and Texas; and the Northern District of Georgia. He was also a law clerk for Acting Justice Carol H. Arber, New York State Supreme Court (1990).

Relevant Experience

  • Successful prosecution of employee “raiding” and theft of trade secret matters, and defense against injunctions in non-competition and trade secret matters.
  • Multiple successful defense verdicts in trials alleging unpaid overtime, missed meal and rest breaks, and inaccurate wage statements based on misclassification and other wage and hour claims.
  • Multiple successful defense victories in JAMS Arbitrations including unpaid overtime, missed meal and rest breaks, and misclassification claims; discrimination, retaliation, failure to provide reasonable accommodation, and failure to engage in the interactive process all under California’s Fair Employment and Housing Act (FEHA); and wrongful termination under California law.
  • Multiple successful defense victories on summary judgment and motions to dismiss, including claims related to discrimination and harassment (race, age, sex, disability) under federal law and FEHA, breach of employment agreements, negligent Infliction of emotional distress, intentional infliction of emotional distress, ADA, FMLA, failure to engage in the interactive process and failure to accommodate.