NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable

In a recent case, (Hernandez v. Pacific Bell Telephone Company) the California Court of Appeal clarified a long-standing law that an employee’s voluntary use of a company vehicle during normal commute is not be considered as “hours worked” for purposes of compensation


The company has issued employees who performed home installations use company vehicles equipped with company tools that employees were required to use for installation jobs.  Prior to 2009, these employees began and ended their work day in the company parking garage, where the employees picked up and returned their company vehicle on a daily basis.  Employees were paid for the time spent travelling from the garage to their first job of the day and the time spent travelling back to the garage after their last job, but they were not paid for the time spent travelling between the garage and their residence.

In 2009, the company started a program where employees were able to voluntarily take the company vehicle home.  This enabled employees who chose to participate in the program to drive from home to the first job of the day and, following the last job of the day, drive back to their residence – bypassing the company parking garage.

In their lawsuit, the plaintiffs claimed that all of the time spent commuting in the company vehicle (specifically the time spent driving between their home and the first/last job sites) constituted hours worked and was compensable, asserting “hours worked”.

“Hours Worked” Defined

The courts provided a two part- part definition of “hours worked” lifted from the Industrial Wage Commission wage order, “the time during which an employee is subject to the control of an employer” and “all the time the employee is suffered or permitted to work, whether or not required to do so.”

The court asserted that neither factor was met in this case.

The court held that to the extent employees could use their own transportation to work but chose to take employer-provided transportation instead, are not under their employer’s control.

This hinged on the employee’s voluntary choice to take a company vehicle for transportation even though the company restricted the employee’s use of the vehicle (i.e. by prohibiting personal errands or transporting passengers). The employees still could opt to begin and end there work day the company’s parking garage, just as they did prior to the HDP.

Take Away for Employers

This decision clarified an issue unanswered in a previous case (Rutti v. Lojack).  The question of whether providing a company vehicle for commuting without restrictions would constitute compensable working time under California law.

This new case holds that voluntarily commuting in a company vehicle does not constitute working time even where the employee is prohibited from using the vehicle for personal errands or transporting passengers.

Employers should be cautioned that this decision should not be misunderstood to mean that an employer will be shielded from all liability for wage and hours claims regarding such commute times simply by providing the illusion of a “choice” to its employees. Where a “de facto” requirement that an employee must commute in an employer’s vehicles can be established, an employer may still leave themselves vulnerable to liability for that commute time.