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Company Driver - do we have to pay for the time between delivery & pickup California

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  • Company Driver - do we have to pay for the time between delivery & pickup California

    We run concerts and events that require sound, stage and lighting. Let's say we have an event 3 hours from our shop. If the "load in" of the equipment ends at 2 pm, and the "load out" of the equipment doesn't start until 10 pm. We would not want the truck to return back to the shop between calls, so do we have to pay the truck's driver for those 8 hours in between calls (since he cannot take the company truck "home" - I know in long distance trucking it's called a "stand by rate")?

    We currently pay them for the drive time, but not for time between "calls".

  • #2
    This is maybe complicated.
    - If we were talking federal law only (FLSA), the employer would claim that the employee is free to do whatever they want during this off period, and that makes it unpaid time. That is not a certain argument but a reasonably plausible argument under federal rules. The employee's counter argument would have to be something like the employer is sufficently restricting their activities, say requiring them to stay by the truck. But that is the "playing field" that the feds would use with such an issue.
    - CA law however is more employee friendly. I will not say for certain that this is hours worked in CA, I have never had a reason to research trucker specific decisions, but I will say that CA calls the "sufficently restricted" based rules a whole lot tighter then the feds do. If it was the employee asking the question, my answer would be to file a wage claim with CA-DLSE. It works or it does not, but I like the employee's chances.
    - The more the employer restricts the employee's so-called off duty time, the more likely that we have hours worked.

    Not your question, but maybe there is an additional issue.
    - The feds do not have a must-reimbursement-business-expenses rule. But they do have a rule that minimum wage and overtime obligations must be paid "free and clear" off all non-statutory obligations, which could include non-reimbursed business expenses.
    - CA however does have a law requiring that "reasonable and necessary" business expenses must be reimbursed quite unrelated to normal wage obligations. If I send Bob out of town today and he comes back tomorrow, and I am going to claim that say from 10 PM to 6 AM he is unpaid because the time is his own, I am in a very weak position (in CA) if I try to argue that Bob should not be reimbursed for a motel room and some meals. I can argue that a Motel-6 and not a Hyatt is "reasonable" but I cannot make this CA requirement go away. Even the feds would at some point choke on a "free and clear" MW/OT violation on this issue.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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