Morillion v. Royal Packing Co.
The foundational decision construing “hours worked”: the wage order’s “subject to the control of an employer” clause and its “suffered or permitted to work” clause are independent factors, and time spent under the employer’s control — here, compulsory travel on employer buses — is compensable even when no work is performed.
Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575
Wage & Hour
Hours Worked
Travel Time
IWC Wage Orders
Reversed
Published
In brief. California requires payment for all “hours worked,” which the IWC wage orders define 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.” Morillion held that those two phrases are independent bases for compensation: an employee subject to the employer’s control need not also be working to be paid. Applying that rule, the Court held that agricultural workers required to ride their employer’s buses to the fields — and forbidden to use their own cars — were under the employer’s control during the ride, so their compulsory travel time is compensable, even though they performed no work en route. The decision also confirmed that the federal Portal-to-Portal Act’s travel-time exclusions do not control California law. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582, 587–588.)
Facts
Royal Packing Company, a Monterey County grower, required its agricultural employees to assemble each morning at designated parking lots or departure points and to ride buses that Royal provided and paid for to the fields where they worked, returning the same way at day’s end. (22 Cal.4th at pp. 579–580.) Royal’s written work rules prohibited employees from driving their own vehicles to the fields, on pain of escalating discipline — a verbal warning for the first violation and, ultimately, being sent home with lost wages. (Id. at p. 579 & fn. 1.) The plaintiff class sought compensation for four categories of time: assembling at the departure points, riding the bus to the fields, waiting for the bus at day’s end, and riding back. (Id. at pp. 579–580.) The Court labeled this “compulsory travel time,” distinguishing it from an ordinary home-to-departure-point commute, which the workers undertook on their own. (Id. at p. 580 & fn. 2.)
Procedural history
The trial court sustained Royal’s demurrer without leave to amend and dismissed the complaint. (22 Cal.4th at p. 580.) The Court of Appeal affirmed: after concluding the travel was not compensable under federal authority, it construed Wage Order No. 14-80 by emphasizing the “suffered or permitted to work” clause and held the travel time noncompensable because the workers did not “work,” as commonly understood, during the ride. (Ibid.) The Supreme Court granted review to determine the correct interpretation of “hours worked” and reversed. (Id. at pp. 580–581, 588.)
Issue
Under Wage Order No. 14-80’s definition of “hours worked” — “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” — is an employee compensated for time spent subject to the employer’s control even if not performing work; and is compulsory travel on employer-mandated transportation such “hours worked”? (22 Cal.4th at pp. 581–582.)
Holding
The two clauses of the “hours worked” definition are independent: an employee “who is subject to an employer’s control does not have to be working during that time to be compensated.” Because Royal required employees to ride its buses and barred them from using their own transportation — controlling when, where, and how they traveled — the compulsory travel time (including time waiting for the buses) is compensable “hours worked.” Ordinary commuting, and travel on transportation the employer offers but does not require, are not. (22 Cal.4th at pp. 582, 587–588.)
Reasoning
1. Two independent definitions of “hours worked.” The word “includes” is “generally a term of enlargement,” so the “suffered or permitted to work” language expands rather than limits the definition. (22 Cal.4th at p. 582.) The two phrases “can also be interpreted as independent factors, each of which defines whether certain time spent is compensable as ‘hours worked.’” Thus “an employee who is subject to an employer’s control does not have to be working during that time to be compensated.” (Ibid.) The Court of Appeal had erred by treating the “suffered or permitted to work” clause as a limit on the control clause. (Id. at pp. 584–585.)
2. The meaning of “control.” Drawing on Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, the Court explained that an employer exercises control when it “directs, commands or restrains” an employee and thereby “prevents the employee from using the time effectively for his or her own purposes.” (22 Cal.4th at pp. 582–583.) That a worker may read or sleep on the bus does not negate control, because such circumscribed activities do not let the worker “use ‘the time effectively for [their] own purposes’” — they cannot drop children at school, stop for breakfast, or run errands requiring a car. (Id. at p. 586.) The Court found support in Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21 (sleeping attendants on premises) and Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403 (restricted meal breaks), and in the DLSE’s view that “it is only necessary that the worker be subject to the ‘control of the employer’” to be entitled to compensation. (Id. at pp. 583–584.)
3. The limiting principle: control, not mere requirement. Anticipating the objection that its rule would sweep in all commute and grooming time, the Court drew the line at the level of control: ordinary commuters “decide when to leave, which route to take to work, and which mode of transportation to use,” whereas Royal dictated “when, where, and how” its employees traveled. (22 Cal.4th at pp. 586–587.) “The level of the employer’s control over its employees, rather than the mere fact that the employer requires the employees’ activity, is determinative.” (Id. at p. 587.) The Court was careful to cabin the holding: ordinary home-to-departure commuting is not compensable, and “employers do not risk paying employees for their travel time merely by providing them transportation” — time on optional employer transportation “may not be compensable.” (Id. at pp. 587–588.) It is the compulsion and resulting control that triggers compensation. (Ibid.)
4. The “suffered or permitted to work” clause stands on its own. The Court rejected the premise that whenever an employee is suffered or permitted to work he is necessarily under the employer’s control. The phrase has independent content: it reaches work the employer “knows or has reason to believe” is being performed — for example, voluntary, unauthorized overtime — even absent control, paralleling the federal “suffer or permit” gloss. (22 Cal.4th at pp. 584–585; see 29 C.F.R. §§ 785.11, 785.13.)
5. Federal law does not control. Because the question arose under a California wage order, the Court held the FLSA and the Portal-to-Portal Act of 1947 — which exclude ordinary travel from compensable time under federal law — do not govern. The Court of Appeal had “confounded” the two bodies of law; California’s wage orders provide broader protection and have not incorporated the federal travel-time exclusions. (22 Cal.4th at pp. 588–589.)
Significance
Morillion is the wellspring of California compensable-time doctrine. Its “two independent factors” reading of “hours worked,” and its control test — “directs, commands or restrains” such that the employee cannot use the time for personal purposes — anchor every later decision in the line: Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833 (on-call and sleep time), Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257 (off-call rest periods), and Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038 (exit-search time), which applied Morillion’s control prong to post-clock-out security checks. Its refusal to import the Portal-to-Portal Act also underlies California’s rejection of the federal de minimis rule in Troester v. Starbucks Corp. (2018) 5 Cal.5th 829. See the Review’s practice guide on off-the-clock work and compensable “hours worked.”
Key quotes
“[A]n employee who is subject to an employer’s control does not have to be working during that time to be compensated under Wage Order No. 14-80.” (Morillion, supra, 22 Cal.4th at p. 582.)
“The level of the employer’s control over its employees, rather than the mere fact that the employer requires the employees’ activity, is determinative.” (Id. at p. 587.)
Practice pointer
Plead compensable-time claims under the control prong, not just “suffer or permit”: time is compensable whenever the employer “directs, commands or restrains” the worker so that the worker cannot use it for personal purposes, even if no work is done. The decisive facts are the degree of control — who dictates when, where, and how — and whether the activity is genuinely required versus merely offered. Watch the boundaries: ordinary commuting and travel on optional employer transportation are not compensable, so develop evidence of compulsion (mandatory assembly points, prohibitions on alternatives, discipline for noncompliance). And do not let a defendant import the federal Portal-to-Portal Act or FLSA travel rules — California is broader.
Open questions
Morillion drew the line at the “level of control” but left its precise location to be worked out case by case — in particular, when employer-provided transportation crosses from “offered” to effectively “required,” and how much residual freedom (reading, sleeping, choosing a seat) a worker may retain before control is negated. Later cases such as Mendiola and Frlekin apply the same control inquiry to on-call and security-check time, but the granular boundaries of “control” continue to generate litigation.
See also: Huerta v. CSI Electrical Contractors