With COVID restrictions mostly lifted, many employees have started to return to worksites, although many employees remain remote or partially remote. Now that employees have returned to commuting, it is a good time for employers to evaluate whether commute time for certain employees is compensable.

Under the California Wage Orders, hours worked are the time during which an employee is subject to the control of the employer and includes the time the employee is “suffered and permitted” to work. Thus, as a general rule, the time an employee spends commuting to and from the office or similar worksite is not compensable.

There are some circumstances where time spent commuting to a worksite may be compensable.

Travel to a worksite via employer-provided transportation may be compensable. In 2000, the California Supreme Court held that where the employer requires its employees to meet at a designated place, use the employer’s transportation to and from the worksite, and prohibits employees from using their own transportation, the time spent on the employer transportation is compensable.

On the other hand, if the use of employer-provided transport is completely voluntary, the time spent commuting on such transport is not compensable.

Employee travel over a substantial distance from the assigned workplace to a distant worksite to report to work on a short-term basis may be compensable. In part, it will depend on how long the new worksite is assigned.

According to the California Labor Commissioner, the travel time is measured by the difference between the time it normally takes the employee to travel from his or her home to the assigned worksite and the time it takes the employee to travel from home to the distant worksite. This could calculate to no compensable time if, for instance, the travel time is less from the employee’s home to the distant worksite than the employee’s normal commute.

Certain employees are not assigned to a specific workplace and have a reasonable expectation that they will be routinely required to travel reasonable distances to job sites on a daily basis. If an employee has no regular job site, travel time to the
new job site each day is not compensable.

Be aware, compensation paid for drive time is separate from potential reimbursement obligations an employer may have for mileage and other business expenses when an employee travels for work.

If you are an employer with concerns over whether you must pay employees for commute time, contact your employment or business attorney for legal advice on how to comply with California’s employee commute time rules.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.