Calif. court rules in favor of Pacific Bell, says it doesn't have to pay for technicians' commute time

By Tomas Kassahun | Dec 4, 2018

SACRAMENTO, Calif. (Legal Newsline) – The California Court of Appeal, 3rd Appellate District has affirmed a trial court’s ruling saying travel time is not compensable for certain employees of Pacific Bell Telephone Co. enrolled in an optional and voluntary program.

In the ruling filed on Nov. 15, Judge Elena J. Duarte wrote commute time is not compensable as “hours worked” under the “suffer or permit to work” test and the Sacramento County Superior Court did not err in granting summary judgment to Pacific Bell.

The court denied the plaintiffs’ argument that travel should be compensated because premises technicians carry equipment and tools necessary to perform their jobs when they get to the worksites.

“As Pacific Bell argues, if carrying equipment necessary for the job were always compensable, every employee who carries a briefcase of work documents or an electronic device to access work emails to and from work would need to be compensated for commute time,” Duarte's opinion stated.

According to the appeals court, the plaintiffs installed and repaired video and internet services in customers’ homes and were enrolled in the company's Home Dispatch Program.

“The Home Dispatch Program is not compulsory because the plaintiffs here were not required to use the company vehicle to commute to work, they were not under the control of the employer,” the opinion stated.

The court added that simply transporting tools and equipment during commute time “is not compensable work where no effort or extra time is required to effectuate the transport.”

The employees were not allowed to use their own vehicles while on the job, but they were required to use a company vehicle and expected to take all necessary equipment to perform their job, the court said. 

According to the opinion, the Home Dispatch Program began in 2009 and "allowed technicians to take a company vehicle home each night instead of returning all vehicles to the Pacific Bell garage."

The appeals court said Israel Hernandez and Larry Michael Sharp brought the class action on behalf of all Pacific Bell premises technicians over allegations they were not paid for the time they were transporting equipment and tools in a company vehicle.

“The complaint stated three causes of action--failure to pay the minimum wage, failure to pay wages timely, and unfair business practices--all based on the failure to pay for the transporting time,” the opinion stated.

According to the opinion, Pacific Bell argued that commuting in an employer-provided vehicle was compensable under California law only if such commuting was mandated, whereas participation in the HDP was optional and voluntary.

The appeals court said the plaintiffs cited several restrictions that were placed on technicians under the HDP, such as not being allowed to talk on the phone while driving and not being allowed to make any stops outside of work.

Citing these restrictions, the employees tried to prove that they were under the employer’s control while commuting and believed they should be compensated, the court said.

“Time employees spend traveling on transportation that an employer provides, but does not require its employees to use may not be compensable as ‘hours worked,’” the opinion stated. 

“Commute time under the HDP is not compensable as 'hours worked' under the control test,” Duarte wrote.

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