Oliver v. Konica Minolta Bus. Solutions United Statesa., Inc.

• Citation: 264 Cal.Rptr.3d 248,51 Cal.App.5th 1
• Decision Date: 02 June 2020
• Docket Number: H045069
• Court: California Court of Appeals
• Parties: Michael OLIVER et al., Plaintiffs and Appellants, v. KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC., Defendant and Respondent.

51 Cal.App.5th 1

264 Cal.Rptr.3d 248

Michael OLIVER et al., Plaintiffs and Appellants,

v.KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC., Defendant and Respondent.

H045069

Court of Appeal, Sixth District, California.

Filed June 2, 2020

Attorneys for Plaintiffs and Appellants: Michael Oliver et al., Robin Workman, Rachel E. Davey, Workman Maw Firm, PC, San Francisco.

Attorneys for Defendant and Respondent: Konica Minolta Business Solutions U.S.A., Inc., Eric Edward Hill, San Francisco, Loren Gesinsky, New York, NY, Eden Anderson, San Francisco, Seyfarth Shaw LLP.

Bamattre-Manoukian, J.

I. INTRODUCTION

In this wage and hour class action, plaintiffs Michael Oliver and Norris Cagonot represented a class of service technicians (collectively, plaintiffs) who were employed by defendant Konica Minolta Business Solutions U.S.A., Inc.¹ Service technicians were required to drive their personal vehicles, which contained defendant's tools and parts, to customer sites to make repairs to copiers and other machines. Service technicians did not report to an office for work. Instead, service technicians usually drove from home to the first customer location of the day and, at the end of the day, from the last customer location to home.

Relevant here, plaintiffs in the class action sought wages for (1) time spent commuting to the first work location of the day and commuting home from the last work location and (2) reimbursement for mileage incurred during those commutes. The parties filed cross-motions for summary adjudication on the two issues. The trial court determined that plaintiffs' commute time was not compensable as "hours worked" under Industrial Welfare Commission wage order No. 4-2001 (Wage Order No. 4; see Cal. Code Regs., tit. 8, § 11040, subd. 4(B) ). Wage Order No. 4 defines hours worked as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." ( Cal. Code Regs., tit. 8, § 11040, subd. 2(K).) The court further determined that plaintiffs were not entitled to reimbursement for commute mileage under Labor Code section 2802,² which requires an employer to indemnify an employee "for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties." On appeal, plaintiffs contend that the trial court erred in granting defendant's summary adjudication motion.

In determining whether the trial court properly found in favor of defendant on the issue of compensability of commute time, we are guided as an intermediate court by the legal principles set forth by the California Supreme Court in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 94 Cal.Rptr.2d 3, 995 P.2d 139 ( Morillion ). (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 ( Auto Equity ).) In Morillion , employees were required to travel to the worksite in employer-paid buses. ( Morillion, supra , at p. 579, 94 Cal.Rptr.2d 3, 995 P.2d 139.) The California Supreme Court indicated that commute time to and from work is generally not compensable. ( Id. at p. 587, 94 Cal.Rptr.2d 3, 995 P.2d 139.) Further, if the employer provides "optional free transportation" to employees, the employer is not obligated to compensate employees for commute time. ( Id. at p. 594, 94 Cal.Rptr.2d 3, 995 P.2d 139 ; see id. at p. 588, 94 Cal.Rptr.2d 3, 995 P.2d 139.) On the other hand, "compulsory travel time" is compensable. ( Id. at p. 587, 94 Cal.Rptr.2d 3, 995 P.2d 139.) The court explained that the "level of the employer's control over its employees ... is determinative." ( Ibid. ) While commuting, employees must be able "to use ‘the time effectively for [their] own purposes.’ " ( Id. at p. 586, 94 Cal.Rptr.2d 3, 995 P.2d 139.) Because the employees in Morillion "were foreclosed from numerous activities in which they might otherwise engage if they were permitted to travel to the [worksite] by their own transportation" ( id. at p. 586, 94 Cal.Rptr.2d 3, 995 P.2d 139 ), the court determined that they were " ‘subject to the control’ " of the employer and entitled to wages for the time travelling on the buses to the worksite ( id. at p. 578, 94 Cal.Rptr.2d 3, 995 P.2d 139 ).

Here, we determine that if carrying tools and parts in a service technician's personal vehicle during the commute was optional, then the service technician was not "subject to the control of [defendant]" for purposes of determining whether that time constituted "hours worked." ( Cal. Code Regs., tit. 8, § 11040, subds. 2(K), 4(B) ; see Morillion, supra , 22 Cal.4th at p. 594, 94 Cal.Rptr.2d 3, 995 P.2d 139.) Further, even if a service technician was required—"strictly speaking" or "as a practical matter"—to carry tools and parts during the commute, the service technician would not be "subject to the control of [defendant]" during the commute if the service technician was able "to use ‘the time effectively for [the service technician's] own purposes.’ " ( Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, 1054, 258 Cal.Rptr.3d 392, 457 P.3d 526 ( Frlekin ); Cal. Code Regs., tit. 8, § 11040, subd. 2(K) ; Morillion, supra , at p. 586, 94 Cal.Rptr.2d 3, 995 P.2d 139.) On the other hand, if a service technician was required during the commute to carry a volume of tools and parts that did "not allow [the service technician] to use ‘the time effectively for [the service technician's] own purposes," then the technician would be "subject to the control of [defendant]" for purposes of determining "hours worked" and entitlement to wages. ( Morillion, supra , at p. 586, 94 Cal.Rptr.2d 3, 995 P.2d 139 ; Cal. Code Regs., tit. 8, § 11040, subds. 2(K) & 4(B).)

Based on the record in this case, we determine that there are triable issues of material fact regarding (1) whether service technicians were subject to defendant's control during their commute such that their commute time constituted "hours worked" for which wages must be paid, and (2) whether service technicians were entitled to reimbursement for commute mileage. ( Cal. Code Regs., tit. 8, § 11040, subd. 4(B) ; see id. , § 11040, subd. (2)(K); § 2802.) We will therefore reverse the judgment that was entered in defendant's favor.

II. FACTUAL BACKGROUND

A. Service Technicians

Defendant provided business printing, copying, and scanning products and services to customers. Plaintiffs Oliver and Cagonot were employed by defendant as service technicians. Service technicians maintained or repaired copiers or other devices at the customer's site, among other tasks. The products serviced by the service technicians included different brands and types of machines.

B. Commuting to and from Home

Defendant's customers were in different locations, and most service technicians did not report to the same location every day. Service technicians usually drove from home to their first work location of the day. Service technicians were expected to be at the site of their first call at 8:00 a.m. Typically, the first or last work location of the day was a customer job site, but it also may have been one of defendant's branch locations, a field stocking location to pick up parts, or other "business stop." At the end of the workday, the service technician usually drove from the last work location to home. Service technicians were expected to leave their last location by 5:00 p.m.

C. Compensation for Time and Reimbursement for Mileage

Service technicians were compensated for their regular work hours between 8:00 a.m. and 5:00 p.m., including time spent driving during that period. Service technicians were also reimbursed for all miles driven during their workday between their first and last work stops.

Defendant generally did not pay wages, or reimburse mileage, for commuting to the first call of the day, and commuting home from the last call of the day, when the commute was within the service technician's normal territory.³

However, if a service technician commuted to a branch location or a field stocking location to pick up parts before going to the first customer call of the day, the time and mileage from that branch or field stocking location to the first customer call was compensable and reimbursable.⁴

D. Vehicle Requirement

For a period, defendant provided company cars to its service technicians. Defendant eventually ended the company car program, and service technicians generally were required to drive non-company vehicles for work. "On-premise" technicians were assigned to only one customer and were not required to have a vehicle. On-premise technicians are not at issue in this case.

Regarding the type of vehicle, defendant's written driver policy states that service technicians "shall maintain a late-model vehicle in good repair and appearance with no less than twenty-five (25) cubic feet of lockable cargo space." The written policy also requires that the "vehicle have sufficient security for cargo space to carry parts and tools as needed.... Further, this space must be lockable and environmentally sound (i.e., dry, vented, etc.). This is especially important for drivers who wish to use pickup trucks where a rigid, lockable covering is expected to be securely mounted over the cargo bed area."

The purpose of requiring cargo space is because service technicians need "some amount of in-vehicle storage for the tools and materials associated with their job." Defendant believed that "25 cubic feet [was] a very comfortable space by which [service technicians] can hold their tools and anything else they need for the job."

Notwithstanding the written policy regarding a required minimum volume of cargo space, defendant never measured a service technician's vehicle. The types of vehicles driven by service technicians included a Honda Civic, Toyota Corolla, and Volkswagen Beetle, and some vehicles had as little as 11 to 14 cubic feet of cargo space.

Defendant did not have any policy...