Filed 6/2/20; Certified for Publication 6/24/20 (order attached)




                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SIXTH APPELLATE DISTRICT


 MICHAEL OLIVER et al.,                                             H045069
                                                                   (Santa Clara County
             Plaintiffs and Appellants,                             Super. Ct. No. 2014-1-CV-263183)

             v.

 KONICA MINOLTA BUSINESS
 SOLUTIONS U.S.A., INC.,

             Defendant and Respondent.


                                              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

         1
             Defendant was named in the complaint as “Konica Minolta Business Solutions,
USA.”
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 (Morillion). (See Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455 (Auto Equity).) In Morillion, employees were required to
travel to the worksite in employer-paid buses. (Morillion, supra, at p. 579.) The
California Supreme Court indicated that commute time to and from work is generally not
compensable. (Id. at p. 587.) 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; see id. at p. 588.) On the other hand, “compulsory travel
time” is compensable. (Id. at p. 587.) The court explained that the “level of the
employer’s control over its employees . . . is determinative.” (Ibid.) While commuting,


       2
           All further statutory references are to the Labor Code unless otherwise indicated.
                                               2
employees must be able “to use ‘the time effectively for [their] own purposes.’ ” (Id. at
p. 586.) 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), 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).
       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.) 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 (Frlekin); Cal. Code Regs., tit. 8, § 11040, subd. 2(K); Morillion, supra, at p. 586.)
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; 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
                                             3
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




                                               4
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

       3
         Defendant’s written policy provided that if the technician’s commute was
beyond the technician’s normal commute or territory, the technician was reimbursed for
the additional commute time and mileage. However, some technicians were not aware of
this policy.
       4
         On appeal, plaintiffs contend that they started their workday at home by, among
other tasks, responding to e-mails, checking the status of parts orders, confirming their
schedule and route, checking the inventory in their vehicle, and loading any necessary
parts into their vehicle. As we set forth infra, however, the parties stipulated that their
cross-motions for summary adjudication were based on the technicians’ commutes to and
from “non-work site homes.”
                                              5
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 restricting service technicians from using their
personal vehicles for personal pursuits during their commutes. For example, a service
technician could have passengers or run errands during the commute.
         E. Storage and Carrying of Tools and Parts
         Defendant supplied the tools that service technicians needed to work on the
machines. The tools included a laptop, a small vacuum cleaner,5 a hand cart, and a
service case containing hand tools such as screwdrivers, pliers, and wrenches. Service
technicians could decide which tools to carry in their vehicle. Some service technicians
worked on multiple machines, so they carried all the tools provided by defendant in their
car.
         In addition to tools, defendant provided service technicians with the parts they
needed to service customers’ machines. Defendant’s written inventory guidelines
provided that each service technician had a target of carrying 150 to 250 “[u]nique items”


         5
             The vacuum was one foot long by six to eight inches tall.
                                                6
with a value of $9,000 to $14,000. However, that same document indicated that each
service technician was “different and determining what parts to carry can be difficult.”
       Regarding storing parts, defendant’s written policy states: “Generally all parts
must be maintained in the vehicle a service technician uses to travel between service
calls. Any exceptions to this policy must be manager-pre-approved, and most often
involve storage of at least some parts at a [defendant] or customer facility. The storage of
parts in a person’s residence or other non-approved location is strictly forbidden.”
Defendant thus expected service technicians “to have in their vehicle . . . the tools and
parts required to support their customers.” In particular, the “primary inventory”
assigned to a service technician was “expected to be” in the service technician’s vehicle.
       Defendant allowed many service technicians to store parts at a “field stocking
location,” which could be a self-storage facility, a branch office, or a customer location.
Some service technicians were given the discretion to decide where they stored their parts
between the various locations and when to visit the location. Many service technicians
stored larger or seldom-used parts in the field stocking location and carried smaller, more
commonly-used parts in their vehicles. Other service technicians, however, did not have
a field stocking location available to them to store parts and/or were told to carry most of
the parts, or as many of the parts as reasonably possible, that were assigned to them. At a
minimum, however, service technicians were generally expected to take with them the
tools and parts they reasonably expected to use on their next prescheduled customer visit.
       Defendant’s written “Field Parts Inventory Practice Guide” states that stock in a
vehicle “should be . . . organized” and “easy to locate.” (Some capitalization omitted.)
“Trunk stock inventory” must “be stored in a vehicle,” and “[p]arts should be properly
secured in a locked vehicle.” “These items should not be stored elsewhere such as the
employee’s house or garage.” Likewise, parts stored at a customer’s location must be
“stored in a secure location.”


                                              7
       Service technicians may also have certain items that defendant categorized as “do
not count” (DNC) items. “DNC items include screws, washers, grease, lubricant,
vacuum filters, manuals, test charts, tools, etc.” “DNC items are counted as zero during
the physical inventory process.” Regarding storing DNC items, or carrying them in the
service technician’s vehicle, it is not clear from the record that DNC items were treated
any differently than other parts in the service technician’s inventory.
       Several service technicians described the amount of space that the tools and parts
occupied in their vehicle. For example, one service technician, who drove an Audi TT
coupe and who did not have a parts storage location, kept almost all assigned parts in his
vehicle. The service technician folded down the back seats to maximize trunk space.
The items he carried in his car included tools, a foldable handcart, cleaning materials, and
two “Rubbermaid type” containers with small parts.
       Another service technician drove a Corolla. His trunk and back seat were “full” of
tools and parts. At times, there were so many boxes in the back seat that he could not see
out the back window.
       One service technician stated in a declaration that he “routinely carried . . . at least
400 pounds of equipment and tools” in his van. He stored larger parts in a storage locker.
The service technician testified at a deposition that “[e]veryone’s car was packed to the
top.” They had to carry “a bunch of parts,” and they “couldn’t fix stuff if [they] didn’t.”
       Another service technician stated in a declaration that he folded down his back
seats, and that the tools and parts issued to him took up the entire back seat area. His “car
was typically so filled with parts that [he] couldn’t see out of [his] rear view mirror.”
Larger items that would not fit in his car were kept in defendant’s storage locations.
       F. Audit and Evaluation of Service Technicians
       Defendant’s written “Field Parts Inventory Practice Guide” describes “20 / 20
Inventory Audits” in which 20 random items are chosen, and the service technician is
given 20 seconds to produce each item from the trunk. (Some capitalization omitted.)
                                               8
The audit is described in writing by defendant as “a good tool to use throughout the year
to test the usability of the [service technician’s] trunk stock” and as “promot[ing] good
trunk organization.” Notwithstanding the written description of the audit as giving the
service technician 20 seconds to find each item in the trunk, there is evidence in the
record that the part could properly be stored in a field storage location or a customer
location.
       Service technicians were evaluated based on various criteria, which may include a
“first time fix” or “first call completion” rate. Under this criterion, service technicians
were evaluated on their ability to fix the customer’s problem the first time they visited the
customer. “[P]art of the way that technicians satisf[ied] this requirement [was] having
the proper parts with them in their personal vehicles when they get to the customer
location.” The first-time fix percentage that defendant expected from service technicians
was at least 89 percent.
       A service technician may also be evaluated by “calls per day.” Under this
criterion, defendant had a certain number of calls per day that it expected the service
technician to meet. Eventually, defendant began focusing on a “call duration” metric,
which was based on the amount of time the service technician spent on each call. Both
these metrics—calls per day and call duration—were based on the type of machine the
service technician worked on and the national average for time to repair that machine.
                           III.   PROCEDURAL BACKGROUND
       A. The Complaint and Class Certification
       In 2014, plaintiff Oliver filed a putative class action complaint alleging three
causes of action against defendant: (1) failure to pay overtime wages pursuant to
section 1194 and failure to provide accurate wage statements as required by section 226,
(2) failure to reimburse for work related expenses in violation of section 2802, and
(3) violation of the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.).
The causes of action were based on defendant’s (a) failure to pay service technicians for
                                              9
time spent driving personal vehicles to the first job of the day, and from the last job of the
day, while transporting tools and equipment necessary to do their jobs, (b) failure to
reimburse service technicians for the miles driven during those trips, and (c) failure to
provide wage statements listing that time as hours worked.
       In early October 2015, on motion of plaintiff Oliver, the trial court certified a class
of approximately 380 technicians with Oliver and Cagonot as class representatives.
       In late October 2015, a first amended complaint was filed, adding Cagonot as a
named plaintiff and adding a fourth cause of action for civil penalties under the Labor
Code Private Attorneys General Act of 2004 (PAGA; § 2698 et seq.). The PAGA claim
was based on the Labor Code violations alleged in the other causes of action.
       B. Cross-Motions for Summary Adjudication
       The parties each filed motions for summary adjudication. The trial court initially
denied the motions on procedural grounds because the issues raised by the parties were
not matters that could be summarily adjudicated. (See Code Civ. Proc., § 437c,
subd. (f)(1) [a party may seek summary adjudication of a cause of action, affirmative
defense, a claim for damages, or an issue of duty].)
       At the trial court’s invitation, the parties filed a stipulation pursuant to Code of
Civil Procedure section 437c, subdivision (t),6 requesting that the court adjudicate the
following two issues that were presented in their cross-motions for summary
adjudication: (1) “Based on the record evidence, is [d]efendant legally obligated . . . to
pay class members wages for the time spent driving their personal vehicles from their
non-work site homes to the first work site of the day and from the last work site of the
day back to their homes,” and (2) “[b]ased on the record evidence, is [d]efendant legally
obligated . . . to reimburse class members for the miles driven in their personal vehicles

       6
         Code of Civil Procedure section 437c, subdivision (t) allows a trial court, upon
stipulation of the parties, to hear a motion for summary adjudication of a legal issue that
does not completely dispose of a cause of action, affirmative defense, or issue of duty.
                                              10
from their non-work site homes to the first work site of the day and from the last work
site of the day back to their homes?”
                     1. Plaintiffs’ Motion for Summary Adjudication
       In plaintiffs’ motion for summary adjudication, they contended that defendant
required them to (1) drive their own personal vehicles and (2) transport tools and parts
when they commuted to and from work. Plaintiffs argued that they were entitled to
wages for time spent, and reimbursement for miles driven, during their commutes.
Plaintiffs contended that California law provided for compensation under two
circumstances: when an employee is subject to the employer’s control, or when the
employee is suffered or permitted to work regardless of whether the employee is required
to do so. Plaintiffs argued that the court did not need to reach the first test regarding
control because they were entitled to compensation under the latter test regarding
suffered or permitted to work. In support of their contention that they were entitled to
wages and reimbursement, plaintiffs relied on, among other authorities, an opinion letter
from the Division of Labor Standards Enforcement (DLSE), workers’ compensation
cases, and cases applying federal law.
                    2. Defendant’s Motion for Summary Adjudication
       In its motion for summary adjudication, defendant contended that plaintiffs were
not entitled to compensation and reimbursement for “normal commute time and . . .
normal commute miles.” Defendant argued that the presence of tools and parts in
plaintiffs’ vehicles did not “transform their ordinary commute into” worktime. Because
plaintiffs were not subject to defendant’s control or engaged in work-related tasks during
their commute, and because plaintiffs did not incur expenses in direct consequence of the
discharge of their duties, defendant contended that plaintiffs were not entitled to payment
for time or mileage. Defendant argued that the various authorities cited by plaintiff, such
as the DLSE opinion letter, the workers’ compensation cases, and the cases arising under
federal law were not persuasive authority in support of plaintiffs’ contentions.
                                              11
       C. The Trial Court’s Order
       The trial court granted defendant’s motion for summary adjudication, and denied
plaintiffs’ motion for summary adjudication, on the issues of whether service technicians
were entitled to (1) wages for time and (2) reimbursement for miles for driving between
home and the first or last worksite of the day.
       In a lengthy, thoughtful, and detailed order, the trial court determined that the
service technician’s commute time did not constitute “ ‘hours worked’ ” under either the
“ ‘control’ ” test or the “ ‘suffer and permit’ ” test. Under the control test, the court found
it undisputed that defendant did not control the service technicians’ commute, as the
service technicians were not required to take a particular route and could complete
personal errands during the commute. Under the suffer and permit test, the court found
that the service technicians’ transportation of tools during their commutes did not
transform their commutes into work. The court was unpersuaded by plaintiffs’ reliance
on the DLSE opinion letter or by workers’ compensation cases and federal cases that
applied a different legal standard and/or involved distinct factual circumstances. Having
determined that the service technician’s commute time did not constitute hours worked,
the court concluded that service technicians were not entitled to reimbursement for miles
driven during their commute.
       D. The Judgment
       The trial court’s ruling on the summary adjudication motions did not dispose of all
of plaintiffs’ claims in the operative pleading. Upon plaintiffs’ request, the trial court
dismissed a remaining section 2802 claim by plaintiffs regarding the insufficiency of the
rate of reimbursement by defendant. A judgment was thereafter filed in favor of
defendant on July 18, 2017, regarding plaintiff’s causes of action for (1) failure to pay
overtime and (2) failure to reimburse expenses, and the associated causes of action for
(3) violation of the UCL, and (4) civil penalties under PAGA.


                                              12
                                      IV. DISCUSSION
       Plaintiffs contend that the trial court erred in granting defendant’s motion for
summary adjudication on the issues of whether they were entitled to wages for time spent
commuting and reimbursement for commute mileage. In analyzing whether the trial
court properly granted summary adjudication in defendant’s favor, we first set forth the
standard of review. We then consider whether plaintiffs were entitled to wages for their
commute time and whether they were entitled to reimbursement for commute mileage.
       A. The Standard of Review
       A party may move for summary judgment or, in the alternative, summary
adjudication. (Code Civ. Proc. § 437c, subds. (f)(1) & (2), (t)(5).) A motion, such as in
this case, under Code of Civil Procedure section 437c, subdivision (t) for summary
adjudication of a legal issue that does not completely dispose of a cause of action, an
affirmative defense, or an issue of duty “proceed[s] in all procedural respects as a motion
for summary judgment.” (Id., section 437c, subd. (t)(5).)
       The moving party “bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact; if [the movant] carries
[this] burden of production,” the burden of production shifts to the opposing party “to
make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
       In determining whether the parties have met their respective burdens, “the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn
therefrom [citation], and must view such evidence [citations] and such inferences
[citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th
at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof.” (Id. at p. 850,
fn. omitted.)
                                             13
       “In reviewing a trial court’s grant of summary judgment [or summary
adjudication], . . . ‘ “[w]e take the facts from the record that was before the trial court
when it ruled on that motion” ’ and ‘ “ ‘ “review the trial court’s decision de
novo . . . .” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
       B. Wages for “Hours Worked”
       California “wage and hour claims are . . . governed by two . . . sources of
authority: the provisions of the Labor Code, enacted by the Legislature, and a series
of . . . wage orders, adopted by the [Industrial Welfare Commission (IWC)].” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026 (Brinker).) “The
IWC’s wage orders are to be accorded the same dignity as statutes.” (Id. at p. 1027.)
Both the wage orders and the wage and hour laws are “liberally construe[d] . . . to favor
the protection of employees. [Citations.]” (Augustus v. ABM Security Services, Inc.
(2016) 2 Cal.5th 257, 262; accord Brinker, supra, at pp. 1026-1027.)
        The wage orders specify the minimum requirements regarding wages, hours, and
working conditions across entire industries or occupations. (Brinker, supra, 53 Cal.4th at
p. 1026.) In this case, defendant relies on Wage Order No. 4, and plaintiffs do not
dispute the applicability of this wage order.
       Wage Order No. 4 requires an employer to pay employees the applicable
minimum wage for all “hours worked.” (Cal. Code Regs., tit. 8, § 11040, subd. 4(B).)
“ ‘Hours worked’ means 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.” (Id., § 11040, subd. 2(K), italics added.) “[T]he two
phrases—‘time during which an employee is subject to the control of an employer’ and
‘time the employee is suffered or permitted to work, whether or not required to do so’ ”
are “independent factors, each of which defines whether certain time spent is
compensable as ‘hours worked.’ ” (Morillion, supra, 22 Cal.4th at p. 582; see id. at
p. 584.)
                                                14
       At issue in this case is whether the commute by service technicians constitutes
work for which defendant must pay wages. We therefore turn to whether there is a
triable issue regarding whether service technicians’ commute meets at least one of the
factors defining hours worked, that is, the employee was subject to the “control of an
employer” or the employee was “suffered or permitted to work.” (Cal. Code Regs., tit. 8,
§ 11040, subd. 2(K)).
                                   1. Employer Control
              a. General legal principles
       “[C]ontrol of an employer” in the definition of “ ‘[h]ours worked’ ” (Cal. Code
Regs., tit. 8, § 11040, subd. 2(K)) has been interpreted to mean “when an employer
‘directs, commands or restrains’ an employee. [Citation.] Thus, ‘[w]hen an employer
directs, commands or restrains an employee from leaving the work place during his or her
lunch hour and thus prevents the employee from using the time effectively for his or her
own purposes, that employee remains subject to the employer’s control. . . . [T]hat
employee must be paid.’ [Citation.]” (Morillion, supra, 22 Cal.4th at p. 583; see id. at
p. 586.) Likewise, when an employer requires a personal attendant employee to spend
time at its premises, the time is considered “ ‘hours worked’ ” even though the employee
performs no work and is allowed to sleep. (Ibid.) Indeed, “ ‘an employer, if [it] chooses,
may hire a [person] to do nothing, or to do nothing but wait for something to happen. . . .
Readiness to serve may be hired, quite as much as service itself . . . .’ [Citations.])”
(Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 840.) “Thus, an
employee who is subject to an employer’s control does not have to be working during
that time to be compensated under [the wage order]. [Citations.]” (Morillion, supra,
22 Cal.4th at p. 582; see id. at p. 584.) The California Supreme Court has emphasized
that “[t]he level of the employer’s control over its employees, rather than the mere fact
that the employer requires the employees’ activity, is determinative” of whether an


                                             15
activity is compensable under the control provision. (Id. at p. 587; accord, Frlekin,
supra, 8 Cal.5th at p. 1056.)
              b. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575
       The California Supreme Court has indicated that commute time to and from work
is generally not compensable. (Morillion, supra, 22 Cal.4th at p. 587; Frlekin, supra,
8 Cal.5th at p. 1051.) Further, if the employer provides “optional free transportation” to
employees, the employer is not obligated to compensate employees for commute time if
they are not required to use this transportation. (Morillion, supra, at p. 594; see id. at
p. 588.) On the other hand, “compulsory travel time” is compensable. (Id. at p. 587.)
       The California Supreme Court applied these principles in Morillion. In Morillion,
the employer required its agricultural employees to meet at specified locations, where an
employer-paid bus transported the employees to and from the fields where the employees
worked. (Morillion, supra, 22 Cal.4th at p. 579.) The employees were prohibited from
using their own transportation to get to and from the fields. (Ibid.)
       The California Supreme Court concluded that the employer was obligated to pay
employees for the time travelling on the buses because the employees were “ ‘subject to
the control’ ” of the employer. (Morillion, supra, 22 Cal.4th at p. 578.) The court
explained that, “[b]y ‘ “direct[ing]” ’ and ‘ “command[ing]” ’ [the employees] to travel
between the designated departure points and the fields on its buses, [the employer]
‘ “control[led]” ’ them within the meaning of ‘hours worked’ under” the applicable wage
order. (Id. at p. 587.) In other words, “by requiring employees to take certain
transportation to a work site, employers thereby subject those employees to its control by
determining when, where, and how they are to travel. Under the definition of ‘hours
worked,’ that travel time is compensable. [Citations.]” (Id. at p. 588.)
       The California Supreme Court further explained that “[p]ermitting [employees] to
engage in limited activities such as reading or sleeping on the bus does not allow them to
use ‘the time effectively for [their] own purposes.’ [Citation.]” (Morillion, supra,
                                              16
22 Cal.4th at p. 586.) For example, “during the bus ride [the employees] could not drop
off their children at school, stop for breakfast before work, or run other errands requiring
the use of a car. [The employees] were foreclosed from numerous activities in which
they might otherwise engage if they were permitted to travel to the fields by their own
transportation. Allowing [employees] the circumscribed activities of reading or sleeping
does not affect, much less eliminate, the control [the employer] exercises by requiring
them to travel on its buses and by prohibiting them from effectively using their travel
time for their own purposes. Similarly, . . . listening to music and drinking coffee while
working in an office setting can also be characterized as personal activities, which would
not otherwise render the time working noncompensable.” (Ibid.)
       The California Supreme Court disagreed with the employer’s argument that such
an interpretation of “ ‘hours worked’ ” was “so broad that it encompasses all activity the
employer ‘requires,’ including all commute time, because employees would not commute
to work unless the employer required their presence at the work site, and all grooming
time, because employees might not, for example, shave unless the employer’s grooming
policy required them to do so.” (Morillion, supra, 22 Cal.4th at p. 586.) The court
explained that the employer did “not consider the level of control it exercises by
determining when, where, and how plaintiffs must travel. In contrast to [the agricultural
employees at issue before the court], employees who commute to work on their own
decide when to leave, which route to take to work, and which mode of transportation to
use. By commuting on their own, employees may choose and may be able to run errands
before work and to leave from work early for personal appointments. The level of the
employer’s control over its employees, rather than the mere fact that the employer
requires the employees’ activity, is determinative. [Citations.]” (Id. at pp. 586-587.)
       The California Supreme Court was also not persuaded by the employer’s argument
that “ ‘the commute was something that would have had to occur regardless of whether it
occurred on [the employer’s] buses, and [the employees] point to no particular detriment
                                             17
that ensued from riding the [employer’s] buses.’ ” (Morillion, supra, 22 Cal.4th at
p. 587.) The court explained that this argument “fail[ed] to distinguish between travel
that the employer specifically compels and controls, as in this case, and an ordinary
commute that employees take on their own. When an employer requires its employees to
meet at designated places to take its buses to work and prohibits them from taking their
own transportation, these employees are ‘subject to the control of an employer,’ and their
time spent traveling on the buses is compensable as ‘hours worked.’ [Citation.]” (Ibid.)
       Because the California Supreme Court determined that the employees were
“subject to the control of” their employer while traveling on the employer’s bus, the court
did not reach the alternative question of whether the employees were “suffered or
permitted to work” during that travel period (Cal. Code Regs., tit. 8, § 11140,
subd. 2(G)). (Morillion, supra, 22 Cal.4th at p. 578.)
              c. Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131
       Subsequent to Morillion, and after the trial court ruled on the parties’ cross-
motions for summary adjudication in the instant case, the appellate court in Hernandez v.
Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131 (Hernandez) addressed the issue
of whether commute time was compensable in the context of an optional company
vehicle program. In Hernandez, the plaintiff employees installed and repaired video and
Internet services at customers’ residences for their defendant employer, Pacific Bell
Telephone Company. (Id. at p. 134.) The employees participated in an “optional and
voluntary” home dispatch program in which they were allowed to take a company vehicle
home each night, instead of returning the vehicle to the company garage. (Id. at pp. 134,
135.) The company vehicle was “loaded” with tools and equipment, such as modems,
cable boxes, and DVRs. (Id. at p. 134, 141.) Under the home dispatch program, the
employees could use the company vehicle only for company business, only authorized
persons could ride in the vehicle, employees could not engage in personal errands during
their commute, and employees could not talk on a cell phone while driving even before it
                                             18
was against the law. (Id. at pp. 135, 137.) Once a week, the employees visited the
company garage to load equipment and tools needed for the week. (Ibid.) Employees
were paid for this driving and loading time. (Ibid.) However, employees were not
compensated for time spent commuting between their homes and customers’ residences
in the employer-provided vehicle. (Id. at p. 134.)
       The appellate court applied the “control test” and determined that the employees’
commute time in the company vehicle was not compensable because use of the company
vehicle was optional. (Hernandez, supra, 29 Cal.App.5th at p. 141.) The court explained
that “[t]he rule of Morillion applies only where use of the employer-provided
transportation is compulsory.” (Id. at p. 139.) Quoting from Morillion, the appellate
court in Hernandez reiterated “ ‘that employers do not risk paying employees for their
travel time merely by providing them transportation. 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.” ’ [Citation.]” (Hernandez, supra, at p. 141;
accord, Novoa v. Charter Communications, LLC (E.D.Cal. 2015) 100 F.Supp.3d 1013,
1021 (Novoa) [use of company vehicle was optional and therefore technician’s commute
time was not compensable under California law]; see Alcantar v. Hobart Service (9th Cir.
2015) 800 F.3d 1047, 1050, 1055-1055 (Alcantar) [under California law, service
technician had to establish that his commute in the employer’s vehicle was required, and
that the restrictions on his commute were such that he was under the employer’s control];
Rutti v. Lojack Corp. (9th Cir. 2010) 596 F.3d 1046, 1049, 1061-1062 (Rutti) [based on
California law, technician was under employer’s control when he was required to drive
the company vehicle and could not engage in personal errands, among other restrictions,
while commuting.)
       Because the appellate court in Hernandez determined that the employees’
commute time was not compensable as “hours worked” under the control test, the
appellate court proceeded to address whether that commute time was compensable under
                                            19
the alternative “suffered or permitted to work” test. (Cal. Code Regs., tit. 8, § 11040,
subd. (2)(K); Hernandez, supra, 29 Cal.App.5th at p. 141). The appellate court
concluded that the commute time was also not compensable under this latter test.
(Hernandez, supra, at pp. 141-145.)
              d. Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038
       More recently, in Frlekin, supra, 8 Cal.5th 1038, the California Supreme Court
addressed the issue of employer control in the context of whether employees were
entitled to wages for time awaiting and undergoing mandatory personal bag searches
before exiting the employer’s premises. (Frlekin, supra, 8 Cal.5th at p. 1042.) The court,
citing Morillion, supra, 22 Cal.4th 575, reiterated that “an employee who is subject to the
control of an employer does not have to be working during that time to be compensated
under the applicable wage order.” (Frlekin, supra, at p. 1046.)
       However, the California Supreme Court in Frlekin also observed that “there are
inherent differences between cases involving time spent traveling to and from work, and
time spent at work. Commuting is an activity that employees ordinarily initiate on their
own, prior to and after their regular workday, and is not generally compensable.
[Citations.] Moreover, in the commute context, an employer’s interest generally is
limited to the employee’s timely arrival. Generally speaking, it would not seem to matter
to the employer how or when an employee travels, so long as the employee arrives on
time. Thus, unless the employer compels the employee to use a certain kind of
transportation or employer-provided transportation, it would be, without more,
unreasonable to require the employer to pay for travel time.” (Frlekin, supra, 8 Cal.5th at
p. 1051.)
       The California Supreme Court stated that, in contrast, in the case before it, the
employer controlled its employees “at the workplace, where the employer’s
interest— . . . deterring theft—is inherently greater. Moreover, the level of [the
employer’s] control over its employees—the ‘determinative’ factor in analyzing whether
                                             20
time is compensable under the control standard [citation]—is higher during an onsite
search of an employee’s bags, packages, and personal . . . devices. . . . Because [the
employer’s] business interests and level of control are greater in the context of an onsite
search, the mandatory/voluntary distinction applied in Morillion is not dispositive in this
context.” (Frlekin, supra, 8 Cal.5th at p. 1051, italics omitted.).
       The California Supreme Court identified an additional distinction between the
nature of the controlled activity in the case before it, and Morillion and its progeny
(including Hernandez, supra, 29 Cal.App.5th 131) which involved “optional services that
primarily benefit the employee.” (Frlekin, supra, 8 Cal.5th at p. 1051, italics omitted.)
The court in Frlekin explained: “In Morillion, we characterized optional employer-
provided transportation as an employee benefit that should be encouraged as a policy
matter. [Citation.] We expressed optimism that our decision would not dissuade
employers ‘from providing free transportation as a service to their employees.’
[Citation.]” (Frlekin, supra, 8 Cal.5th at pp. 1051-1052, italics omitted.) The court in
Frlekin stated that, in contrast, in the case before it, the employer-controlled activity of
bag searches primarily served and benefitted the employer’s interests to detect and deter
theft. (Id. at p. 1053.)
       The California Supreme Court further indicated that whether the activity is
compelled or required “ ‘is a flexible concept.’ [Citation.] . . . ‘[O]nly “genuine”
choices—and not “illusory” choices—avoid compensation liability under California’s
Wage Orders.’ [Citations.] . . . [S]ome ‘actions . . . are, practically speaking, required,
even though they are nominally voluntary.’ ” (Frlekin, supra, 8 Cal.5th at p. 1054.)
       After considering several additional factors that were relevant to “onsite employer-
controlled activities,” the California Supreme Court concluded that the employees at
issue were subject to the employer’s control while awaiting and during exit searches, and
that therefore the employees were entitled to compensation for the time spent waiting for
and undergoing those searches. (Frlekin, supra, 8 Cal.5th at p. 1056-1057, italics
                                              21
omitted.)7 Because the court concluded that the employees were entitled to compensation
under the control test, the court declined to express an opinion on whether the employees
were alternatively entitled to compensation under the “ ‘suffered or permitted to work’ ”
test. (Id. at p. 1057.)
       e. Analysis
       In this case, it is undisputed that defendant required service technicians to drive
their personal vehicles for work, and that defendant did not have an express policy
restricting service technicians from using their vehicles for personal pursuits during their
commutes. These facts alone distinguish the instant case from (1) Morillion, where
employees were required to ride in an employer-provided bus; (2) Hernandez, where
employees were given the option to use a company vehicle albeit with express
restrictions on personal use; and (3) Frlekin, where the employees were required to
undergo exit bag searches on company premises.
       Nevertheless, based on the legal principles and guidance set forth in Morillion and
Frlekin, which we must follow as an intermediate court (Auto Equity, supra, 57 Cal.2d at
p. 455), we determine that there are material factual disputes in this case regarding
whether service technicians were precluded from using their commute time effectively

       7
         Frlekin, supra, 8 Cal.5th 1038 was filed by the California Supreme Court after
briefing was completed in the instant case. The Frlekin case originated in federal court,
and the parties in the instant case originally cited the federal district opinion, Frlekin v.
Apple Inc. (N.D.Cal., Nov. 7, 2015, No. C 13-03451 WHA (lead); No. C 13-03775 WHA
(consolidated); No. C 13-04727 WHA (consolidated)) 2015 U.S. Dist. LEXIS 151937.
The district court had determined that the plaintiff employees could not meet either the
control test, or the suffered or permitted to work test, for purposes of hours worked under
the relevant wage order, and consequently the federal district court granted summary
judgment in favor of the employer. (Id. at pp. *10-*11, *31, *36-*37.)
        The employees appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit
thereafter certified to the California Supreme Court the question of whether the time
spent by employees waiting for and undergoing a required search of bags was
compensable as hours worked. (Frlekin v. Apple, Inc. (9th Cir. 2017) 870 F.3d 867, 869.)
The California Supreme Court granted the Ninth Circuit’s request, which resulted in the
California Supreme Court’s opinion in Frlekin, supra, 8 Cal.5th 1038.
                                             22
for their own purposes such that they were “subject to the control” of defendant. (Cal.
Code Regs., tit. 8, § 11040, subd. 2(K).) On the one hand, 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.) 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, supra, 8 Cal.5th at
p. 1054; Cal. Code Regs., tit. 8, § 11040, subd. 2(K); Morillion, supra, at p. 586.) 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; Cal. Code Regs., tit. 8, § 11040, subds. 2(K) &
4(B).) In this case, there are factual disputes regarding whether service technicians were
required to carry tools and parts in their personal vehicles during their commutes, and
regarding the volume of tools and parts that they were required to carry during their
commutes.
       First, there is a factual dispute regarding whether service technicians were
required, either strictly speaking or as a practical matter, to commute with tools and parts
in their personal vehicles. Defendant had a written policy requiring parts to be stored in
the service technician’s vehicle. Any exceptions to this policy required a manager’s
approval. The circumstances under which manager approval was sought by service
technicians, or given by managers, are not clear from the record. The evidence reflects
that although some service technicians had access to and the option to use a field stocking
                                             23
location where parts could be stored, other service technicians did not have such storage
access and/or were told to carry as many parts as possible in their vehicle. Further, based
on defendant’s performance criteria for service technicians, a reasonable inference arises
that the performance criteria were more readily satisfied if a service technician commuted
with tools and parts in the service technician’s vehicle, rather than spending work time
picking up parts from a storage location and then driving to the first customer of the day.
       Second, there is a factual dispute regarding the volume of tools and parts that
service technicians were required to carry in their vehicles while commuting. Again, a
reasonable inference arises that a service technician more readily satisfied defendant’s
performance criteria if the service technician carried more, rather than less, parts in the
vehicle. Moreover, defendant’s written policy required “a late-model vehicle in good
repair and appearance with no less than twenty-five (25) cubic feet of lockable cargo
space” to carry tools and parts. However, there was evidence that some service
technicians did not comply with the written policy and drove cars with smaller cargo
space. For example, whereas one service technician indicated that he routinely carried at
least 400 pounds of equipment and tools in his van even with access to a storage locker,
another service technician who did not have a parts storage location was able to keep
almost all assigned parts in his Audi coupe. However, another service technician, who
drove a Corolla, had a trunk and back seat “full” of tools and parts and, at times, could
not see out the back window.
       The record reflects that, as a practical matter, the available space in a service
technician’s vehicle would have been limited depending on the volume of parts the
service technician was required to carry during the commute, which would accordingly
limit the service technician’s personal pursuits. One service technician testified that, to
use his vehicle for personal reasons on weekends, such as to go out with family or
friends, he unloaded the parts from his vehicle on weekends and then reloaded the vehicle
on Sunday night. Another service technician likewise testified that he had to unload his
                                             24
vehicle when he wanted to use it for personal reasons on the weekends. Along these
lines, plaintiff Cagonot testified that on weekends, he drove his wife’s vehicle because he
did not want to remove the parts in his vehicle and then put them back in. In view of the
evidence that some service technician’s vehicles were nearly completely full with tools
and parts, along with the evidence of the impact that tools and parts in vehicles had on
service technicians on the weekends, a reasonable inference arises that at least some
service technicians’ personal pursuits during commute times would have been restricted
by the volume of parts in their vehicles.
       We understand defendant to contend that the presence of tools or parts in its
service technicians’ personal vehicles is not relevant to the issue of whether it exercised
control. In this regard, defendant observes that in certain federal court cases that have
addressed the issue of commuting by technicians under California law, the existence of
tools and parts was “not material to the courts’ analyses or even discussed” regarding
whether those technicians’ commute time was compensable. (See Alcantar, supra, 800
F.3d at pp. 1049-1050 [service technician maintained and repaired commercial food
equipment]; Rutti, supra, 596 F.3d at p. 1049 [technician installed and repaired vehicle
recovery systems in vehicles]; Novoa, supra, 100 F.Supp.3d at pp. 1013, 1021 [technician
installed, repaired, and disconnected broadband services]; see also Stevens v. GCS Serv.
(9th Cir. 2008) 281 Fed. Appx. 670.)
       However, as the California Supreme Court explained, “[t]he level of the
employer’s control over its employees . . . is determinative. [Citations.]” (Morillion,
supra, 22 Cal.4th at p. 587.) While commuting, employees must be able “to use ‘the time
effectively for [their] own purposes.’ [Citation.]” (Id. at p. 586.) Neither Morillion nor
the federal cases cited by defendant purport to contain an exhaustive list of the facts that
may be considered in determining whether an employee is able to use commute time
effectively for the employee’s own purpose. Moreover, Morillion and the federal cases
cited by defendant involve different factual circumstances than this case, which involves
                                             25
defendant’s requirement of a personal vehicle and the purported requirement that tools
and parts remain in the vehicle during the commute.
       In sum, if carrying tools and parts during the commute was optional, then a 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.) Likewise, 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, supra, 8 Cal.5th at
p. 1054; Cal. Code Regs., tit. 8, § 11040, subd. 2(K); Morillion, supra, at p. 586.) 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; Cal. Code Regs., tit. 8, § 11040, subds. 2(K) &
4(B).) Triable issues of material fact exist regarding whether service technicians were
required to carry tools and parts in their personal vehicles during their commutes, and
regarding the volume of tools and parts that they were required to carry during their
commutes. As a result, summary adjudication should not have been granted in
defendant’s favor on the issue of whether it was obligated to pay service technicians for
their commute time.
                            2. Suffered or Permitted to Work
       Because we have determined that triable issues of material fact exist regarding
whether service technicians’ commute time constitutes “hours worked” under the control
factor, we need not determine whether a triable issue exists regarding “hours worked”
under the “suffered or permitted to work” factor. (See Cal. Code Regs., tit. 8, § 11040,
                                             26
subds. 2(K) & 4(B); Morillion, supra, 22 Cal.4th at pp. 582, 584 [control and suffered or
permitted to work are independent factors].)
                                   3. Other Authorities
       We observe that plaintiffs, in contending that their commute time is compensable,
rely on (1) section 200 among other Labor Code sections, (2) a DLSE opinion letter,
(3) workers’ compensation and other cases outside the wage and hour context, and
(4) cases decided under federal law. We do not find the cited authority helpful in
resolving the question of whether plaintiffs’ commute time is compensable in this case.
       First, section 200 defines the terms “wages” and “labor.” “ ‘Wages’ includes all
amounts for labor performed by employees . . . .” (Id., § 200, subd. (a).) “ ‘Labor’
includes labor, work, or service whether rendered or performed under contract . . . or
other agreement if the labor to be paid for is performed personally by the person
demanding payment.” (Id., § 200, subd. (b).) We understand plaintiffs to contend that
they were entitled to compensation for commuting because they were performing a
“service” for defendant within the meaning of section 200, subdivision (a), when they
“transport[ed] in their personal vehicles [defendant’s] parts and tools to and from
customer locations, without which technicians cannot do their jobs.” To the extent
plaintiffs are arguing that simply performing a service for an employer is sufficient to
trigger the obligation to pay wages, and that they do not need to meet either of the factors
defining “hours worked” under Wage Order No. 4, that is, “control” by the employer or
“suffered or permitted to work,” we are not persuaded by plaintiffs’ argument. (Cal.
Code Regs., tit. 8, § 11040, subd. 2(K).) Section 200 defines wages in terms of “labor
performed” by an employee, and labor is defined to include “labor, work, or service.”
(§ 200, subds. (a) & (b).) Plaintiffs offer no authority to support the proposition that the
legal standard for determining whether wages are owed differs depending on whether the
employee performed/rendered work versus service.


                                             27
       Second, regarding the DLSE opinion letter, we observe that “ ‘[t]he DLSE “is the
state agency empowered to enforce California’s labor laws, including IWC wage
orders.” ’ [Citation.] The DLSE’s opinion letters, ‘ “ ‘ “while not controlling upon the
courts by reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” ’ ” ’
[Citations.]” (Brinker, supra, 53 Cal.4th at p. 1029, fn. 11.) A court may adopt the
DLSE’s interpretation if the court independently determines that the interpretation is
correct. (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 563 (Gattuso);
Morillion, supra, 22 Cal.4th at p. 584.)
       In this case, plaintiffs rely on a DLSE opinion letter regarding an employee whose
commute alternated between two worksites. (Dept. of Industrial Relations, DLSE,
Counsel H. Thomas Cadell, Jr., Opn. letter No. 2003.04.22, Travel Time Pay for
Employee with Alternative Worksites (Apr. 22, 2003), at p. 1
<https://www.dir.ca.gov/dlse/opinions/2003-04-22.pdf> [as of June 1, 2020], archived at
<perma.cc/A5QZ-AG4L>.) A company vehicle was furnished to the employee, who did
“ ‘not transport any significant materials from one worksite to the other.’ ” (Ibid.) The
DLSE identified several factors for determining whether some or all the employee’s
commute time was compensable. The employee’s occupation was not identified in the
letter. However, the DLSE provided hypothetical examples involving different types of
construction workers and whether their commute time was compensable. Relevant here,
the DLSE further stated: “Also, if the travel involved the employee being required to
deliver any equipment, goods or materials for the employer, the travel, no matter how
extended, would be compensable.” (Id. at p. 3.)
       In this case, the parties dispute (1) whether the above-quoted sentence regarding
the delivery of equipment in the DLSE opinion letter was in reference to the employee
who prompted the letter, or to one of the construction workers described in the
hypothetical examples, (2) whether the reference to “equipment, goods or materials” in
                                            28
the letter includes the tools and parts at issue in this case, (3) the meaning of “deliver” in
the letter, and (4) whether service technicians in this case “deliver” anything to
customers. Given the ambiguity regarding the factual context of the statement and the
lack of legal analysis for the conclusion stated, it is difficult to determine whether the
DLSE’s general statement that the “deliver[y]” of “any equipment, goods or materials for
the employer” is compensable travel time applies in this case. For that reason, we do not
find the DLSE’s general statement in the letter to provide much guidance in resolving the
issues in the instant case. (See Hernandez, supra, 29 Cal.App.5th at p. 143 [regarding the
same opinion letter and statement by the DLSE, the appellate court did “not find the
‘tangential and conclusory’ statement . . . persuasive on the question” of whether
transporting equipment and tools during a commute is compensable time].)
       Third, plaintiffs rely on workers’ compensation cases, along with tort and
disability retirement benefits cases, that address whether an employee, who was required
to use a personal vehicle for work, was acting within the course or scope of employment
when the employee suffered an injury, or injured someone else, while commuting. (See,
e.g., Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 151-153, 157, 163;
Joyner v. Workers’ Comp. Appeals Bd. (1968) 266 Cal.App.2d 470, 471-472, 474, 476-
477; Lane v. Industrial Acc. Com. (1958) 164 Cal.App.2d 523, 525, 526-528; Moradi v.
Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 890-891, 894 [respondeat superior / tort
case]; Singh v. Board of Retirement (1996) 41 Cal.App.4th 1180, 1182-1183, 1188
[disability retirement benefits case].) We understand plaintiffs to be contending that,
because defendant required that they drive their personal vehicles to transport tools and
parts for work, they were acting in the course and scope of their employment when they
commuted in their personal vehicles with tools and parts. To the extent plaintiffs seek to
rely on these cases from outside the wage and hour context to support the contention that
they are entitled to compensation for commute time, plaintiffs do not persuasively
articulate why the legal standard in those cases—course or scope of employment—is the
                                              29
proper test for determining whether an employee is subject to the “control” of an
employer or “is suffered or permitted to work” for purposes of determining “ ‘[h]ours
worked’ ” under the wage order. (Cal. Code Regs., tit. 8, § 11040, subd. 2(K).)
       Fourth, we likewise find unhelpful plaintiffs’ reliance on federal cases applying
federal labor law. “[California] law may provide employees greater protection” than
federal law. (Morillion, supra, 22 Cal.4th at p. 592.) The California Supreme Court
specifically recognized this principle in the context of whether commute time is
compensable under state versus federal law. (Ibid.) Under the federal Portal-to-Portal
Act (29 U.S.C. § 251 et seq.), which amended the Fair Labor Standards Act of 1938
(FLSA; 29 U.S.C. § 201 et seq.), an employer is not required to pay an employee for
“traveling to and from the actual place of performance of the principal activity or
activities which such employee is employed to perform.” (29 U.S.C. § 254(a)(1).)8
Thus, “[n]ormal travel from home to work” is not compensable under federal law,
regardless of “whether [the employee] works at a fixed location or at different job sites.”
(29 C.F.R. § 785.35 (2020).)
       In contrast to “the Portal-to-Portal Act, which expressly and specifically exempts
travel time as compensable activity under the FLSA,” “[t]he California Labor Code and


       8
         Title 29 United States Code section 254(a) generally provides that an employer is
not required to compensate an employee for the following activities: “(1) walking,
riding, or traveling to and from the actual place of performance of the principal activity or
activities which such employee is employed to perform, and [¶] (2) activities which are
preliminary to or postliminary to said principal activity or activities, [¶] which occur
either prior to the time on any particular workday at which such employee commences, or
subsequent to the time on any particular workday at which he ceases, such principal
activity or activities. For purposes of this subsection, the use of an employer’s vehicle
for travel by an employee and activities performed by an employee which are incidental
to the use of such vehicle for commuting shall not be considered part of the employee’s
principal activities if the use of such vehicle for travel is within the normal commuting
area for the employer’s business or establishment and the use of the employer’s vehicle is
subject to an agreement on the part of the employer and the employee or representative of
such employee.”
                                             30
IWC wage orders do not contain an express exemption for travel time.” (Morillion,
supra, 22 Cal.4th at p. 590.) In the absence of convincing evidence that the IWC
intended to adopt the federal standard for determining whether time spent traveling is
compensable under California law, the California Supreme Court has “decline[d] to
import any federal standard, which expressly eliminates substantial protections to
employees, by implication.” (Id. at p. 592.) Consequently, because the federal statutory
scheme “differs substantially from the state scheme,” the California Supreme Court has
stated that the federal statutory scheme “should be given no deference.” (Morillion,
supra, 22 Cal.4th at p. 588.)
       Plaintiffs contend that travel time is compensable under federal law under certain
circumstances. Plaintiffs argue that if travel time under those circumstances are
compensable “under the more restrictive Portal-to-Portal Act,” then such travel time
should necessarily be compensable under the more protective California scheme.
       We are not persuaded by plaintiffs’ argument. Plaintiffs fail to explain how or
why the legal standard applied under federal law for determining the compensability of
commute time is consistent with the standard under California law.
       Further, the federal authorities cited by plaintiffs do not appear to encompass the
factual circumstances of this case, that is, commuting from home in a personal vehicle
with some volume of tools or parts. For example, plaintiff cites 29 Code of Federal
Regulations part 790.7(d) (2020). That regulation, however, indicates that travel by a
logger “carrying . . . a portable power saw or other heavy equipment (as distinguished
from ordinary hand tools) on his trip into the woods to the cutting area” would be
compensable travel time. (Ibid.) Likewise, several of the federal cases relied on by
plaintiffs “involve the delivery of heavy, specialized equipment to the jobsite”
(Hernandez, supra, 29 Cal.App.5th at p. 144). (See, e.g., D A & S Oil Well Servicing,
Inc. v. Mitchell (10th Cir. 1958) 262 F.2d 552, 553 (D A & S) [company trucks mounted
with either 30,000-pound equipment or 109-gallon butane gas tanks]; Crenshaw v.
                                            31
Quarles Drilling Corp. (10th Cir. 1986) 798 F.2d 1345, 1346, 1350 [employee for oil and
gas contractor that had mobile drilling units drove a “specially equipped [company] truck
containing many of the tools that [the employee] needed to service [the] drilling rigs”];
Baker v. Barnard Construction Co. (D.N.M., Nov. 16, 1998, Civ. 93-140 BB/RLP) 1998
U.S. Dist. LEXIS 23589, at p. *5 [employees required to drive a welding rig, which was a
“specially-equipped truck containing a welding machine permanently mounted on the
truck bed, oxygen and acetylene bottles, and all the requisite tools and supplies to
perform pipe welding”].) Here, there is no evidence that plaintiffs carried a power saw or
other heavy equipment, as distinguished from ordinary hand tools, or that plaintiffs were
involved in the delivery of heavy, specialized equipment that is similar to the equipment
in the cited cases.
       Alternatively, the federal cases cited by plaintiffs involve certain travel time that
plaintiffs are already compensated for in this case, such as travel time between the
employer’s property and the jobsite/customer site. (See Russano v. Premier Aerial &
Fleet Inspections, LLC (E.D.Mich., Aug. 4, 2016, No. 14-cv-14937) 2016 U.S. Dist.
LEXIS 102313, at pp. *2-*3, *12-*13; D A & S, supra, 262 F.2d at p. 554; Lacy v. Reddy
Elec. Co. (S.D.Ohio, July 11, 2013, No. 3:11-cv-52) 2013 U.S. Dist. LEXIS 97718, at
pp. *3-*4; Herman v. Rich Kramer Construction, Inc. (8th Cir. Sep. 21, 1998, No. 97-
4308WMS) 1998 U.S. App. LEXIS 23329, at pp. *2, *4-*5; McLaughlin v. Somnograph,
Inc. (D.Kan., Dec. 21, 2005, No. 04-1274-MLB) 2005 U.S. Dist. LEXIS 38562, at
pp. *4-*5, *14-*17; Sakas v. Settle Down Enterprises, Inc. (N.D.Ga. 2000) 90 F.Supp.2d
1267, 1272-1273, 1280-1281.)
       C. Mileage Reimbursement Under Section 2802
       The second issue that defendant addressed in its motion for summary adjudication
was whether it was obligated to reimburse service technicians for miles driven in their
personal vehicles between home and their first or last worksite of the day.


                                             32
       Section 2802 requires an employer to “indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct consequence of the
discharge of his or her duties . . . .” (§ 2802, subd. (a).) “[T]he term ‘necessary
expenditures or losses’ shall include all reasonable costs.” (Id., subd. (c).)
“ ‘Section 2802 is designed to prevent employers from passing their operating expenses
on to their employees. For example, if an employer requires an employee to travel on
company business, the employer must reimburse the employee for the cost of that travel
under Section 2802.’ [Citation.]” (Gattuso, supra, 42 Cal.4th at p. 562.) Likewise, an
employer must reimburse employees for vehicle expenses that they necessarily incur in
performing their employment tasks. (See id. at pp. 567, 568.) An employer’s
reimbursement obligation may be satisfied by paying actual expenses or mileage. (See
id. at p. 569.)
       We understand plaintiffs to contend that, because service technicians’ duties
require them to commute in personal vehicles while transporting defendant’s tools and
parts, they must be reimbursed for commute mileage under section 2802.
       Defendant disputes that commute expenses must always be borne by the employer
whenever a personal vehicle is required for work.
       We need not resolve the issue of whether an employer’s requirement of a personal
vehicle by itself is sufficient to trigger a mileage reimbursement obligation under
section 2802. Defendant concedes that if service technicians are owed wages for their
commute time, then they are also owed reimbursement for commuting mileage under
section 2802. Because we have determined that triable issues of fact exist regarding
whether service technicians are entitled to wages for the time spent commuting, triable
issues of fact also exist regarding whether service technicians are entitled to mileage
reimbursement under section 2802 for their commute.




                                             33
                                     V. DISPOSITION
       The judgment is reversed. On remand, the trial court shall vacate its order
granting summary adjudication in favor of defendant on the issues set forth in the parties’
stipulation and enter a new order denying defendant’s summary adjudication motion in its
entirety.




                                            34
                                ___________________________________________
                                Bamattre-Manoukian, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




Oliver et al. v. Konica Minolta Business Solutions USA
H045069
Filed 6/24/20
                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


 MICHAEL OLIVER et al.,                             H045069
                                                   (Santa Clara County
          Plaintiffs and Appellants,                Super. Ct. No. 2014-1-CV-263183)

          v.                                        ORDER CERTIFYING OPINION
                                                    FOR PUBLICATION
 KONICA MINOLTA BUSINESS
 SOLUTIONS U.S.A., INC.,

          Defendant and Respondent.



THE COURT:
        The opinion in the above-entitled matter filed on June 2, 2020, was not certified
for publication in the Official Reports. The California Employment Lawyers
Association, Centro Legal de la Raza, Legal Aid at Work, and Bet Tzedek request the
opinion be certified for publication. Under California Rules of Court, rule 8.1105(c), the
opinion is ordered published.
                                _________________________________________
                                BAMATTRE-MANOUKIAN, J.




                                __________________________________________
                                ELIA, ACTING P.J.




                                ___________________________________________
                                MIHARA, J.




Oliver et al. v. Konica Minolta Business Solutions USA
H045069
Trial Court:                               Santa Clara County Superior Court
                                           Superior Court No.: 2014-1-CV-263183


Trial Judge:                               Hon. Peter H. Kirwan


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


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




Oliver et al. v. Konica Minolta Business Solutions USA
H045069
