MORILLION v. ROYAL PACKING COMPANY

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Court of Appeal, Sixth District, California.

Jose M. MORILLION et al., Plaintiffs and Appellants, v. ROYAL PACKING COMPANY, Defendant and Respondent.

No. H017212.

Decided: August 18, 1998

Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, and David A. Rosenfeld, Piedmont and Amy D. Martin, Oakland, for Plaintiffs and Appellants. Rynn & Janowsky and Lewis P. Janowsky and Bart M. Botta, Newport Beach, for Defendants and Respondents.

In this case, we must decide whether agricultural workers are entitled to compensation for the time they are required to spend commuting on their employer's buses.   As we explain, we conclude that the commute time was not compensable.   We therefore affirm the trial court's decision sustaining without leave to amend the employer's demurrer to the workers' first amended complaint.

Facts and Procedural Background

Royal Packing Company (“Royal”) is a corporation doing business in Monterey County and is a person as defined under Labor Code section 18.1  Appellants are current and past agricultural employees of Royal who have worked at locations maintained by Royal.

In their first amended complaint, appellants allege that they were compelled to meet for work at specified parking lots or assembly areas, and then required to take buses provided by Royal to the fields where they worked.   Appellants allege that Royal did not pay appellants for (1) the time spent assembling at the departure point;  (2) the time spent riding the bus to the fields;  (3) the time spent waiting for the bus at the end of the day;  and (4) the time spent riding the bus back to the parking lots or assembly areas.2

Appellants allege that these requirements were set forth in Royal's work rules.   The rules provided:  “The employee will show up at the departure point of his appropriate area at the time indicated by his/her supervisor or foreman and the employee will park his/her personal vehicle.   Then, at this same place, the employee will take the appropriate crew bus which will take him/her to his/her place of work.   In the afternoon, after the employee has completed his/her shift, the bus will take the employee back to the original departure point.  [¶] If for any reason the employee did not arrive at the departure center on time or decided to drive his/her personal vehicle to his/her place of work, he/she will be given a verbal warning the first time this occurs.  [¶] If for the same reason or a different reason, the employee takes his/her personal vehicle to his/her place of work a second time, the company will call this to his/her attention, indicating that if this ever happens again, the company will take the necessary action to correct the problem and he/she will be sent home and lose the days work when this occurs.”

Appellants assert claims for California Labor Code violations, unfair business practices, and breach of contract.   They also seek injunctive relief.   Appellants' action is brought as a class action.  (Code Civ. Proc., § 382.)   Appellants' claims all stem from their contention that they are entitled to be compensated for the time spent commuting, entitled to be paid overtime accruing therefrom, and also entitled to penalties caused by Royal's failure to compensate them.   According to appellants, Industrial Welfare Commission (“IWC”) wage order No. 14-80, which defines hours worked, establishes that they are entitled to this compensation.

Royal demurred and moved to strike appellants' first amended complaint.   The trial court granted the motion to strike, sustained the demurrer without leave to amend, and dismissed appellants' complaint with prejudice.

This appeal ensued.

Standard of Review

 A general demurrer presents the same question to the appellate court as to the trial court:  whether the plaintiff has alleged sufficient facts in the complaint to justify relief on any legal theory.  (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 952-953, 230 Cal.Rptr. 192.)  “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded․   The court does not, however, assume the truth of contentions, deductions or conclusions of law․   The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken․’   However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory․   And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal.Rptr.2d 92, 831 P.2d 317, citations omitted.)   We review the material allegations of the first amended complaint in light of these principles.

Discussion

 Appellants contend that their commute time was compensable under IWC Wage Order No. 14-80.   We disagree.   Before explaining our conclusion, we first review the applicable legal principles.

The Industrial Welfare Commission is the state agency authorized to formulate regulations which govern employment in the state of California.  (Lab.Code, §§ 1173, 1178.5, 1182;  see also Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 561, 59 Cal.Rptr.2d 186, 927 P.2d 296.)   These regulations are known as “wage orders.”   IWC Wage Order No. 14-80 governs all persons employed in agricultural occupations subject to certain exceptions not relevant here.3  Under IWC wage order No. 14-80, “hours worked,” is defined 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, § 11140, subd.  (2)(G).)

 The Division of Labor Standards Enforcement (“DLSE”) is the state agency empowered to enforce California labor laws, including IWC wage orders.  (Lab.Code, §§ 21, 61, 95, 98-98.7;  see also Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at pp. 561-562, 59 Cal.Rptr.2d 186, 927 P.2d 296.)   In 1989, the DLSE prepared a formal Operations and Procedures Manual.   This manual reflected an attempt to organize interpretative and enforcement policies and obtain a measure of uniformity from one office to the next.  (Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at p. 562, 59 Cal.Rptr.2d 186, 927 P.2d 296.)   The DLSE manual has interpreted the term “hours worked” to include time workers are compelled to spend riding company-provided buses.   In the DLSE interpretation, it is stated:  “[W]here employers provide transportation such as farm labor buses ‘for the convenience of the workers,’ it should be ascertained whether employees are allowed to drive their own cars to the job site or field.   If not, the time they are required to be at the point to catch the bus is the beginning of their hours worked.”

Relying upon the DLSE interpretation, appellants argue that they were entitled to be paid for the hours they were compelled to spend commuting on the Royal buses.   Citing the recent California Supreme Court decision in Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th 557, 59 Cal.Rptr.2d 186, 927 P.2d 296, Royal disagrees.   Royal maintains that the DLSE interpretation is not controlling.

In Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th 557, 59 Cal.Rptr.2d 186, 927 P.2d 296, the California Supreme Court held that (1) the DLSE is an agency subject to the Administrative Procedure Act (APA);  and (2) a wage order interpretation set forth in the DLSE manual was a regulation subject to the APA and was therefore void because it was not adopted in compliance with APA procedures.  (Id. at p. 576, 59 Cal.Rptr.2d 186, 927 P.2d 296;  see also Cuadra v. Millan (1998) 17 Cal.4th 855, 864, fn. 10, 72 Cal.Rptr.2d 687, 952 P.2d 704.)   When analyzing this issue, Tidewater Marine disapproved Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 38 Cal.Rptr.2d 549.  Bono held that the DLSE's interpretation of the same language at issue here, namely the definition of “hours worked,” was not a regulation subject to the APA. The California Supreme Court disagreed, reasoned that the DLSE's “hours worked” interpretation was a regulation within the meaning of the APA, and consequently disapproved Bono's conclusion to the contrary.  (Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at p. 574, 59 Cal.Rptr.2d 186, 927 P.2d 296.) 4

The Tidewater defendants also argued that the DLSE interpretation of the IWC wage order was the only reasonable interpretation.   Disagreeing once again, the court reasoned that “if the DLSE's interpretation of the IWC wage orders were the only reasonable interpretation, then the DLSE would not need to state the interpretation in a policy manual in order to ‘achieve some measure of uniformity from one office to the next.’ ”  (Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at p. 574, 59 Cal.Rptr.2d 186, 927 P.2d 296.)   Accordingly, the California Supreme Court concluded:  “DLSE's policy for determining whether to apply IWC wage orders to maritime employees constitutes a regulation and is void for failure to comply with the APA․   We conclude we can give no weight to the DLSE's interpretation of the wage orders.”  (Id. at p. 576, 59 Cal.Rptr.2d 186, 927 P.2d 296.)

As Tidewater Marine Western, Inc. illustrates, the DLSE policy regarding IWC wage order No. 14-80's “hours worked” reference is an interpretation, applied generally to a class of similar cases, and does not merely restate or summarize the DLSE's prior decisions or advice letters.   Accordingly, it is a regulation, is void for failure to comply with the APA, and is not controlling or entitled to deference.   Nonetheless, the correct interpretation of IWC wage order No. 14-80 remains at issue.   Indeed, although Tidewater Marine Western, Inc. decided that the DLSE's interpretation was void and not entitled to any deference, the court stressed that the underlying wage orders were not void, that the courts must enforce those wage orders, and therefore the court was still required to determine how the wage order should be interpreted.  (Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at p. 577, 59 Cal.Rptr.2d 186, 927 P.2d 296.)   We face the same task in the present case.   We must therefore decide how IWC wage order No. 14-80 should be applied to the circumstances before us.

In undertaking that task, Royal urges us to follow cases and statutes under the Fair Labor Standards Act (FLSA), as amended by the Portal-to-Portal Act. (29 U.S.C. § 251 et seq.)   Royal points out that California courts have recognized that California's wage laws are patterned on federal statutes and that cases construing those federal statutes provide persuasive guidance to our state courts.  (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726, fn. 1, 245 Cal.Rptr. 36;  Building Material & Construction Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 658, 224 Cal.Rptr. 688, 715 P.2d 648.)

The federal statutory scheme is not identical to the California scheme but the thrust of the laws is similar.   Under the FLSA, employers are required to pay their employees the minimum wage for time on the job.   Under the Portal-to-Portal Act, 29 United States Code, section 254, employers do not have to pay the minimum wage to the 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.”  (29 U.S.C., § 254(a).)

After the Portal-to-Portal Act was enacted, the Wage and Hour Administrator of the Department of Labor issued an interpretative bulletin describing specific examples of noncompensatory travel time.   The examples include riding from the plant gate to the actual place of performance, riding on buses between a town and an outlying mine or factory, and riding on buses from a logging camp to the site where operations are being conducted.  (29 C.F.R. § 790.7(f).) 5

In Dolan v. Project Const. Corp. (1983 Colo.) 558 F.Supp. 1308, the court interpreted these federal laws and held that commute time was not compensable.   In Dolan, plant employees checked in at the main camp and then boarded company-provided buses which took them to the job site.   Because of security, safety and traffic problems on the narrow road leading to the job site, the employees were not allowed to provide their own transportation.  (Id. at pp. 1308-1309.)   The employees sought compensation for the time commuting to the job site.   Rejecting the employees' claim, the court determined that the plain statutory language, the legislative history, and the discussion in the interpretative bulletin issued by the Wage and Hour Administrator demonstrated that the employees' travel time was not compensable.  (Id. at p. 1310.)   Although the employees tried to distinguish their situation by emphasizing that information and pay checks were passed out on the bus, the court was not persuaded.   The court stressed that the regulations described waiting in line to receive a paycheck as being an activity normally performed outside the workday.   The court also emphasized that there was no indication that any work was performed during the 20-minute bus ride;  the court reasoned that the intermittent receipt of information during the bus ride “is not an integral part of [the employees'] principal activities and cannot be considered work of consequence.”  (Id. at p. 1311.)

Vega v. Gasper (5th Cir.1994) 36 F.3d 417 also held that workers' travel time was not compensable.   In Vega, the defendant recruited farm workers for the annual chile pepper harvest, arranged for the workers to assemble at a pick-up point, and then transported the workers to the fields in buses provided by the defendant.   The bus trip to the fields lasted about two and one-half hours, with a rest stop along the way.   During the bus ride, the workers were told which field they would harvest, and after arrival at the field, the workers waited about an hour for the sun to rise before beginning work.  (Id. at p. 422.)   At the end of the day, the workers waited two hours while the defendant computed their pay, and were then transported on the buses back to the drop-off point.  (Ibid.)

The workers sued defendant, arguing that the waiting and travel time were compensable.   The court held that the travel time was not compensable.   Explaining that workers were generally not entitled to be payment for ordinary home-to-work travel, the court noted that travel that is an indispensable part of performing one's job would warrant compensation.  “ ‘Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day's work, and must be counted ․ ’ ” (Vega v. Gasper, supra, 36 F.3d at p. 425;  quoting 29 C.F.R. § 785.38.)   The Vega workers' travel time, however, “was indisputably ordinary to-work or from-work travel and not compensable ․ the workers here performed no work prior to or while riding on [defendant's] buses.   They did not load tools or engage in activities that prepared them or their equipment for picking chile peppers before or while riding the buses.   The workers were told on the bus which field they would pick and what the pay rate would be each day.   Merely receiving this information is not enough instruction from [defendant] to render the time compensable․   The travel time was just an extended home-to-work-and-back commute.”  (Vega v. Gasper, supra, 36 F.3d at p. 425.)

As these cases demonstrate, under federal law, it seems clear that appellants would not be entitled to be paid for the time spent commuting.   Like the workers in Dolan and Vega, there is nothing in appellants' circumstances which suggests that their travel time was anything other than an ordinary work commute, nor was there anything to indicate that appellants performed any work while riding the Royal buses.   Nonetheless, appellants emphasize that California law is not the same as federal law.   Appellants urge us to focus upon IWC wage order No. 14-80, and its definition of “hours worked,” rather than resolve appellants' claim by reference to the federal authorities, which involve a more elaborate federal statutory scheme pertaining to workers' travel time.

 Accordingly, we turn to IWC wage order No. 14-80, and its definition of hours worked, to determine whether there is something within that definition which indicates that appellants are entitled to compensation for their commute time.   In so doing, we are aware that the fundamental rule of construing a statute or regulation is to ascertain the intent of the regulation so as to effectuate the purpose of the law.   (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 775, 72 Cal.Rptr.2d 624, 952 P.2d 641;  T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277, 204 Cal.Rptr. 143, 682 P.2d 338.)   The first step in analyzing legislative intent is to examine the actual words, and to try to give them a plain and commonsense meaning.  (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)   When examining the language, we seek to give meaning to every word and phrase to reach a result consistent with the legislative purpose.  (Ibid.) If the language is clear and unambiguous, there is ordinarily no need for statutory construction.  (Ibid.) “A statute is regarded as ambiguous if it is capable of two constructions, both of which are reasonable.”  (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 776, 72 Cal.Rptr.2d 624, 952 P.2d 641.)   If a regulation is ambiguous, we must select the construction that comports most closely with the Legislature's apparent intent, with the goal of promoting rather than defeating the general purpose of the regulation, and avoiding an interpretation which would lead to absurd consequences.  (In re Marriage of Walrath (1998) 17 Cal.4th 907, 918, 72 Cal.Rptr.2d 856, 952 P.2d 1124.)

As already noted, IWC Wage Order No. 14-80 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, § 11140, subd. 2(G).)  According to appellants, the words “subject to the control of the employer” suggest that the commute time could be covered because appellants are compelled to commute on the Royal buses and are therefore arguably subject to Royal's control.   The rest of the definition, namely the phrase “and includes all the time the employee is suffered or permitted to work, whether or not required to do so” suggests, however, that the commute time is not covered.   This is because during the bus ride, appellants were not suffered or permitted to work;  there is no indication that any work, as the term “work” is commonly understood, was “suffered or permitted” during the commute.

Was merely riding the bus a form of work?   Quite clearly, commuting is not generally considered work.   Moreover, there is nothing within IWC wage order No. 14-80 itself which suggests that commuting is a form of work.   On the contrary, the wage order suggests the opposite conclusion.   IWC wage order No. 14-80 defines “employ” as “to engage, suffer, or permit to work.”  (Cal.Code Regs., tit. 8, § 11140, (2)(D).)   IWC wage order 14-80 further defines “employed in an agricultural occupation” and includes a detailed description of activities which fall within that category.  (Cal.Code Regs., tit. 8, § 11140(2)(C).) 6  Accordingly, the definition of “hours worked” should mean the hours suffered or permitted to work [in an agricultural occupation], whether or not required to do so.   Applying this definition to appellants' circumstances, there is no indication that appellants were suffered or permitted to perform any of the activities of a person employed in an agricultural occupation while riding the Royal buses.   Indeed, there is no indication that appellants were compelled to spend the commute time in a certain way;  nothing suggests that appellants were prohibited from engaging in personal activities, such as reading, during their commute.   Accordingly, the travel time appears to have been nothing more than an extended home-to-work-and-back commute.  (See e.g. Vega v. Gasper, supra, 36 F.3d at p. 425.)

Our conclusion that the commute time is not part of the hours appellants worked has additional support.   Under IWC Wage Order No. 14-80, the listed agricultural occupation activities include “The harvesting of any agricultural or horticultural commodity, including but not limited to, ․ placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to the place of first processing or distribution.”  (Cal.Code Regs., tit. 8, § 11140, subd. 2(C)(4), emphasis added.)   The fact that some types of transportation time were included within the description of agricultural occupations demonstrates that the wage order drafters were not unreceptive to the idea of transportation time as a form of work.   Consequently, the fact that some types of transportation were included but time spent commuting to the fields was not undercuts appellants' position that their travel time warranted compensation.

Although appellants emphasize that this particular commute was compelled by Royal, we do not find that fact persuasive.   First, even though the commute took place on Royal buses, it still was not, as we explained above, a period when appellants were “suffered or permitted to work, whether or not required to so.”   Second, the fact that appellants were required to ride the Royal buses does not appear to have placed a significant burden upon appellants.   In other words, if appellants had not been required to ride the Royal buses, they still would have had to undertake the commute, using their own transportation.   Since the commute was something that would have had to occur regardless of whether it occurred on Royal buses, and appellants point to no particular detriment that ensued from riding the Royal buses, we do not believe it would make sense, as a matter of policy, to conclude that appellants were entitled to be compensated for this time.

Further, if we were to conclude that the commute time was compensable because appellants were arguably subject to Royal's control, then we would be ignoring the second clause of the definition of “hours worked.”   If IWC wage order No. 14-80 meant to compensate employees for any time during which they were subject to the employer's control, then there would be no need for the definition's second clause, which refers to “suffered or permitted to work, whether or not required to do so.”   The first clause would have been sufficient.   We believe the intentional inclusion of the clause “suffered or permitted to work, whether or not required to do so” was meant to limit in some way the reference to time spent subject to the employers' control.   Assuming the second phrase is a limiting clause, then the limitation is based upon the notion that the time spent under the employer's control must be time in which the employee was suffered or permitted to work, whether or not required to do so.

The “hours worked” definition “describes the general principle applicable in all hourly employment contexts and means that an employee must be paid for the time he is at work.”  (Brewer v. Patel (1993) 20 Cal.App.4th 1017, 1021, 25 Cal.Rptr.2d 65.)   As we have explained, in this case, appellants' commute did not represent the time during which they were at work and therefore they were not entitled to be compensated for that time.

Disposition

The judgment is affirmed.

FOOTNOTES

1.   All subsequent unspecified statutory references are to the Labor Code.

2.   For ease of reference, we will refer generally to this time as commute or travel time.

3.   IWC wage order No. 14-80 does not apply to “(A) ․ any employee who is engaged in work which is primarily intellectual, managerial, or creative and which requires exercise of discretion and independent judgment, and for which the remuneration is not less than $900.00 per month;  [¶] (B) ․ any individual who is the parent, spouse, child, or legally adopted child of the employer;  ․ [¶] (D) ․ any employee covered by Order No. 8-80 or Order No. 13-80, relating to industries handling products after harvest.  [¶] (E) ․ sheepherders.”  (Cal.Code Regs., tit. 8, § 11140, subds.  (1)(A), (B), (D), (E).)

4.   The court stated:  “Because the DLSE's policy interpreted the wage order, applied generally to a class of similar cases, and did not merely restate or summarize the DLSE's prior decisions or advice letters, it was a regulation within the meaning of the APA. We disapprove Bono Enterprises to the extent that it concludes otherwise.”  (Tidewater,supra, 14 Cal.4th at p. 574, 59 Cal.Rptr.2d 186, 927 P.2d 296.)

5.   Preliminary and postliminary activities are further defined under the Code of Federal Regulations.  “The words ‘preliminary activity’ mean an activity engaged in by an employee before the commencement of his ‘principal’ activity or activities, and the words ‘postliminary activity’ means an activity engaged in by an employee after the completion of his ‘principal’ activity or activities.   No categorical list of ‘preliminary’ and ‘postliminary’ activities except those named in the act can be made, since activities which under one set of circumstances may be ‘preliminary’ or ‘postliminary’ activities, may under other conditions be ‘principal’ activities․”  (29 C.F.R. § 790.7, subd. (b).)  The Code of Federal Regulations further states that “[e]xamples of walking, riding, or traveling which may be performed outside the workday and would normally be considered ‘preliminary’ or ‘postliminary’ activities are (1) walking or riding by an employee between the plant gate and the employer's lathe, workbench or other actual place of performance of his principal activity or activities;  (2) riding on buses between a town and an outlying mine or factory where the employee is employed;  and (3) riding on buses or trains from a logging camp to a particular site at which the logging operations are actually being conducted.”  (29 C.F.R., § 790.7(f).)

6.   IWC wage order No. 14-80 provides, “(C) ‘Employed in an agricultural occupation’ means any of the following described occupations:  [¶] (1) The preparation, care, and treatment of farm land, pipeline, or ditches, including leveling for agricultural purposes, plowing, discing, and fertilizing the soil;  [¶] (2) The sowing and planting of any agricultural or horticultural commodity;  [¶] (3) The care of any agricultural or horticultural commodity.   As used in this subdivision, ‘care’ includes, but is not limited to, cultivation, irrigation, weed control, thinning, heating, pruning, or tieing, fumigating, spraying, and dusting;  [¶] (4) The harvesting of any agricultural or horticultural commodity, including but not limited to, picking, cutting, threshing, mowing, knocking off, field chopping, bunching, baling, balling, field packing, and placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to the place of first processing or distribution;  [¶] (5) The assembly and storage of any agricultural or horticultural commodity, including but not limited to, loading, roadsiding, banking, stacking, binning, and piling;  [¶] (6) The raising, feeding and management of livestock, fur bearing animals, poultry, fish, mollusks, and insects, including but not limited to herding, housing, hatching, milking, shearing, handling eggs, and extracting honey;  [¶] (7) The conservation, improvement or maintenance of such farm and its tools and equipment.”  (Cal.Code Regs., tit. 8, § 11140, subd.  (2)(C).)

ELIA, Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.