29 Cal. App. 5th 131
Cal. Ct. App. 5th2018Background
- Plaintiffs are current and former Pacific Bell premises technicians who install/repair U-verse services and must use company vehicles stocked with tools and equipment.
- Before 2009 technicians picked up vehicles at a Pacific Bell garage and were paid for travel from the garage to first job and back at day's end.
- In 2009 Pacific Bell introduced an optional Home Dispatch Program (HDP) allowing technicians to keep a company vehicle at home; HDP participants are not paid for pre-8:00 a.m. drive time to first job or for post-shift drive home, but are paid for weekly garage visits to load equipment.
- HDP vehicles may be used only for company business; drivers must go directly between home and work, may not run personal errands, carry unauthorized passengers, or use cell phones while driving. Participation is voluntary.
- Plaintiffs brought a class action claiming unpaid "hours worked" for commute time carrying employer equipment; the trial court granted summary adjudication for Pacific Bell and judgment was entered for the company.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether commute time in an employer vehicle under HDP is "hours worked" under the wage order control test | HDP restrictions (vehicle-use limits, no errands, direct route, no passengers, phone rules) subject technicians to employer control, so commute time is compensable | HDP is voluntary; use of employer vehicle is not required, so technicians are not under employer control during commute | Not compensable — control test requires compulsory employer-provided transportation (Morillion); voluntary use is not enough |
| Whether commute time is compensable under the "suffered or permitted to work" test | Transporting employer equipment to/from jobs makes the commute actual work and thus compensable | Mere transport of tools/products that does not add time or exertion is not "suffered or permitted" work; delivery/installation at the site is the compensable activity | Not compensable — incidental transport of tools/equipment without extra exertion/time does not trigger the test |
| Whether DLSE advice, workers' comp cases, or federal Portal-to-Portal decisions require compensation here | DLSE advice and some federal cases support pay when employees deliver equipment; workers' comp decisions treat accidents during commutes with equipment as within course of employment | Those authorities are distinguishable: advice letters are nonbinding, workers' comp decisions address a different legal issue, and federal cases often involve heavy/specialized equipment or different statutory rules | Court rejected persuasive weight of DLSE letter and distinguished other authorities; outcome supports no compensation here |
| Whether summary judgment was appropriate | Plaintiffs argued factual disputes (e.g., what was delivered vs. transported) preclude summary judgment | Pacific Bell argued stipulated and undisputed facts establish voluntariness and lack of compensable exertion | Court affirmed summary judgment for Pacific Bell — no triable issue on the legal tests given the stipulated facts |
Key Cases Cited
- Morillion v. Royal Packing Co., 22 Cal.4th 575 (Cal. 2000) (employer-compulsory transportation that restricts employee activity creates compensable travel time under wage orders)
- Rutti v. LoJack Corp., 596 F.3d 1046 (9th Cir. 2010) (commute time compensable where employee was required to use company vehicle and was tightly controlled)
- Alcantar v. Hobart Serv., 800 F.3d 1047 (9th Cir. 2015) (reversal where factual dispute existed over whether use of employer vehicle was voluntary or de facto required)
- Overton v. Walt Disney Co., 136 Cal.App.4th 263 (Cal. Ct. App. 2006) (employer shuttle time not compensable where use was not required and alternatives existed)
- D A & S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552 (10th Cir. 1958) (federal rule finding travel compensable where driving delivered heavy/specialized equipment integral to job)
- Taylor v. Cox Commc'ns Cal., LLC, 283 F.Supp.3d 881 (C.D. Cal. 2017) (district court applying Morillion: mere transportation of tools without extra exertion/time is not "suffered or permitted" work)