Issue by: Christina Sun
Isreal Hernandez, et al vs. Pacific Bell Telephone Company
Third Appellate District (November 15, 2018)

Is travel time spent in an employer-provided vehicle loaded with equipment and tools under an optional and voluntary Home Dispatch Program compensable? The California Court of Appeal finds it is not.

Plaintiffs are class representatives of current and former employees of Pacific Bell Telephone Company who install and repair video and internet services in customers’ homes. Pacific Bell appealed a judgment in favor of defendant following cross-motions for summary judgment or summary adjudication. Plaintiffs sought compensation for the time spent traveling in an employer-provided vehicle loaded with equipment and tools between their homes and their worksite under an optional and voluntary Home Dispatch Program.

Pacific Bell’s technicians who are paid on an hourly basis may not use their own vehicles while on the job. They must use a company vehicle. They must take with them in the company vehicle all necessary equipment and tools to perform their jobs. Pacific Bell previously paid technicians for the time elapsed between pick-up of the company vehicle at the Pacific Bell garage and arrival at the first worksite, as well as time spent driving back to the garage from the final worksite at the end of the day.

In 2009, Pacific Bell began the Home Dispatch Program (HDP), which allowed technicians to take a company vehicle home each night instead of return all vehicles to the Pacific Bell garage. Participation in the HDP was optional. Under the program, technicians drive the company vehicles containing tools and equipment to and from home each day. As a general rule, technicians are not paid for the time spent driving home with the equipment and tools after their last appointment.

Plaintiffs brought a class action on behalf of Pacific Bell technicians, alleging the class was not paid for the time they were under Pacific Bell’s control, because they were not paid for the time they were transporting equipment and tools in a company vehicle to and from the first and last jobs, and for the time required to safeguard the equipment and tools. The Complaint alleged failure to pay minimum wage, failure to pay wages timely, and unfair business practices. The parties filed cross motions for summary judgment. The trial court granted Pacific Bell’s motion for summary judgment and denied Plaintiffs’ motion.

The Court of Appeal stated the Industrial Welfare Commission (“IWC”) defined “hours worked” to mean “the time during which an employee is subject to control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” The two phrases of the definition “time during which an employee is subject to control of an employer” and “time the employee is suffered or permitted to work” establish two independent factors that define “hours worked.” The time that an employee is “suffered or permitted to work” includes time the employee is working but not under the employer’s control, such as unauthorized overtime, provided the employer has knowledge of it.

Regarding the “control test,” the Court of Appeal found that commute time in an employer-provided vehicle is not compensable when the employee is not required to use that transportation. Employers do not risk paying employees for their travel time merely by providing them transportation. When requiring employees to take certain transportation to a work site, employers subject those employees to employer control by determining when, where, and how they are to travel. Travel time is compensable under these circumstances.

Here, the Court found that the standard of “suffered or permitted to work” is met when an employee is engaged in certain tasks or exertion that a manager would recognize as work. Mere transportation of tools, which does not add time or exertion to a commute, does not meet this standard.

The Court of Appeal affirmed the trial court judgment granting summary judgment to Pacific Bell, and finding that commute time under the voluntary HDP is not compensable as “hours worked” under the “suffer or permit to work” test.

For a copy of the complete decision, see: Hernandez v. Pacific Bell Telephone Co.

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