Metropolitan News-Enterprise


Monday, September 9, 2019


Page 3


Ninth Circuit:

Communications Giant Cox Not Breaching Wage-and-Hour Laws

Panel Affirms Determination That Technicians Need Not Be Paid for Time Spent Returning Home in Company Vehicle From Last Residence Serviced; ‘Home Start’ Program Is Voluntary


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has held that Cox Communications, the third largest cable-TV provider in the nation, does not violate California’s wage-and-hours laws by not paying its field technicians for the time they spend traveling home from the last residence they visit to set up or repair television or Internet equipment.

Thursday’s decision affirms a summary judgment granted to Cox by District Court Judge Cormac J. Carney of the Central District of California in a class action by field technicians who participate in a program called “Home Start.” A technician opting to enter that program clocks-in remotely from home and goes directly to the first customer’s residence, rather than to the office.

A company vehicle is used.

2012 State Action

The action was brought by the named plaintiff, Bill Taylor, in 2012, in Santa Barbara Superior Court.

A motion for class certification was granted on March 4, 2016. Seventeen days later, the case was removed to the District Court by Cox, a Georgia corporation, based on diversity of citizenship.

Applying California law, Carney said in his Dec. 6, 2017 order granting summary judgment that employees are entitled to compensation for the time they spend commuting home only if they are “subject to the control of an employer” or are “suffered or permitted to work, whether or not required to do so.”

The technicians would be under the control of Cox, Carney continued, if the company required them to use company vehicles from and to their homes—but doesn’t.

“Because there is no genuine dispute of material fact that the Home Start program is optional, no reasonable juror could find that class members were ‘subject to the control’ of Defendants on their commutes home,” he declared.

‘Suffered or Permitted’

The technicians argued that they are “suffered or permitted to work” because they necessarily carry tools and equipment in the vehicles. Carney responded:

“Principles of statutory interpretation support the conclusion that the ‘suffered or permitted to work’ standard requires that a commuter be engaged in work-related tasks or exertion in addition to mere transportation,” adding:

“It is undisputed that when Home Start participants commute home, they do not engage in any additional work-related tasks and the transportation of tools and equipment does not add any time to their commutes. Accordingly, no reasonable juror could find that the class members here were ‘suffered or permitted to work’ during their commutes home.”

Memorandum Opinion

Affirming, a three-judge Ninth Circuit panel said in a memorandum opinion:

“Here, the record shows no genuine dispute that Cox did not require its field technicians to commute home in company vehicles because Home Start is a voluntary program. As an alternative to Home Start, Cox’s field technicians have the option to participate in Office Start, which allows them to commute between home and the company depot in their personal vehicles (time which is not compensated), and drive their company vehicles from the depot to their work assignments for the day. Because Taylor failed to present any genuine dispute as to this fact, the district court did not err in granting summary judgment on the ‘subject to the control’ element of his claim.”

The panel agreed with Carney’s analysis of the “suffered or permitted” rule.

Argument ‘Unavailing’

Taylor’s contention that Carney erroneously applied federal law rather than California’s law was termed by the opinion “unavailing.” It explains that the state Court of Appeal, in its decision last Feb. 13 in Hernandez v. Pacific Bell Telephone Co., “addressed identical issues on a similar set of facts and reached the same conclusions as the district court in this case.”

Justice Elena J. Duarte of the Third District wrote the opinion in Hernandez.

The only difference in the fact situation is that Cox does pay for the time a technician spends going to the first job site, but not for the time returning home at the end of the day; Pacific Bell does not pay technicians for the time traveling to the first residence and, as a “general rule,” Duarte said, they aren’t paid for the trip back home.

Mirroring Carney’s analysis, she wrote:

“First, the Home Dispatch Program is not compulsory; because the plaintiffs here were not required to use the company vehicle to commute to work, they were not under the control of the employer. Further, simply transporting tools and equipment during commute time is not compensable work where no effort or extra time is required to effectuate the transport.”

The Ninth Circuit case is Taylor v. Cox Communications California, 18-55053.

On the panel were Circuit Judges Consuelo Maria Callahan and Morgan B. Christen, joined by District Court Judge Edward M. Chen of the Northern District of California, sitting by designation.


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