San Francisco Employment Law Firm Blog

You are a consultant who travels from one work site to another serving the needs of your employer's customers, or you are a support service provider for one of your company's products and your travel all day from one office to another to repair or provide other on-site services. Are you entitled for compensation for the time you commute from one job site to another?
The answer is yes. The Industrial Welfare Commission Orders specifically define the term "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 he or she is required to do so. In other words, under California law, if the travel time is subject to and under the employer's control and it's time for which the employee should be compensated at his regular rate of pay or at overtime rate of pay if applicable.

Of course, the commute in the beginning of the workday to the first job site and the commute at the end of the day - from the last job site back home - is not a compensable time, as it essentially the same kind of time as any other employee would spend who travels to and from one work site (his office) every day.

It should also be noted that the above rules apply to "employees" and not independent contractors, and the answer to the above question in the case if independent contractors is likely to be "no."

Retaliation against employees for exercising their rights or complaining about unlawful conduct of their employer is common. However, proving retaliation in California presents unique legal and factual challenges, as employers almost never simply admit that they retaliated against an employee.

One California court discusses and provides excellent guidance on proving retaliation in California Fair Employment & Housing Commission v. Gemini Aluminum Corp. 122 Cal.App.4th 1094 (2004). In that case, the court noted that to establish the necessary causal link between an employee's protected activity and the adverse employment action by the employer (such as termination, demotion, or transfer to a less desirable position/location) the employee needs to show that he/she engaged in a protected activity, that the employer was aware of that protected activity, and that the adverse action against that employee was taken shortly after the employee engaged in the subject protected activity.

The court emphasized two very important points with regard to retaliation. First, even informal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger prohibition against retaliation. Secondly, the court noted that even threatening to file a discrimination complaint without actually filing it is a protected activity.

Terminating an employee can be a difficult and even devastating experience to the terminated worker, but it's also not an easy decision for the manager / employer charged with the duty of retaining and discharging employees. It's not uncommon for an employee termination to seem unfounded or irrational. For example, an employer might decide to discharge a more senior employee or a good performer while retaining another worker who has performance issues or even many unexcused absences because the latter has a closer relationship with the employer, or compensates for his deficiencies in other ways.

If the aggrieved employee is an at-will employee, this kind of seemingly unfair preferential treatment is only illegal if the reason for it is the fact that the adversely affected employee either (1) belongs to the protected category, such as gender, sexual orientation, disability, religion, ethnicity, familial status; or (2) because the employee exercised protected rights, such as complaining about workplace harassment or unsafe working environment (internally or to the outside government agencies), reporting criminal conduct, filing a workers compensation claim, participating in a union/political activity, serving on a jury, etc.

Since the at-will employment doctrine states that an employee can be terminated for any reason, no reason, or arbitrary reason, except illegal reason, terminating one employee and keeping the other because the employer likes the second employee better for his own, personal reason, assuming that no sexual favoritism is involved, generally does not violate California of Federal employment laws.