CACI 3727 Going-and-Coming Rule—Compensated Travel Time Exception

California Civil Jury Instructions CACI

3727 Going-and-Coming Rule—Compensated Travel Time Exception

If an employer has agreed to compensate an employee for the employee’s commuting time, then the employee’s conduct is within the scope of employment as long as the employee is going to the workplace or returning home.

Directions for Use

This instruction sets forth the compensated travel time exception to the going-and-coming rule. It may be given with CACI No. 3720, Scope of Employment. CACI No. 3723, Substantial Deviation, may also be given if the employee did not go directly from home to work or work to home.

Under the going-and-coming rule, commute time is generally not within the scope of employment. (Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435 [98 Cal.Rptr.3d 837].) However, commute time is within the scope of employment if the employer compensates the employee for the time spent commuting. (Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1111 [214 Cal.Rptr.3d 449].)

Sources and Authority

“[T]he employer may agree, either expressly or impliedly, that the relationship shall continue during the period of ‘going and coming,’ in which case the employee is entitled to the protection of the act during that period. Such an agreement may be inferred from the fact that the employer furnishes transportation to and from work as an incident of the employment. It seems equally clear that such an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.” (Kobe v. Industrial Acci. Com. (1950) 35 Cal.2d 33, 35 [215 P.2d 736], internal citations omitted.)

“There is a substantial benefit to an employer in one area to be permitted to reach out to a labor market in another area or to enlarge the available labor market by providing travel expenses and payment for travel time. It cannot be denied that the employer’s reaching out to the distant or larger labor market increases the risk of injury in transportation. In other words, the employer, having found it desirable in the interests of his enterprise to pay for travel time and for travel expenses and to go beyond the normal labor market or to have located his enterprise at a place remote from the labor market, should be required to pay for the risks inherent in his decision.” (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)

“We are satisfied that, where, as here, the employer and employee have made the travel time part of the working day by their contract, the [employee] should be treated as such during the travel time, and it follows that so long as the employee is using the time for the designated purpose, to return home, the doctrine of respondeat superior is applicable.” (Hinman, supra, 2 Cal.3d at pp. 962.)

“[C]ourts have excepted from the going and coming rule those cases in which the employer and employee have entered into an employment contract in which the employer agrees to pay the employee for travel time and expenses associated with commuting, thus making ‘the travel time part of the working day by their contract.’ ” (Lynn, supra, 8 Cal.App.5th at p. 1111.)

“To the same effect are the cases where the employer furnishes transportation to and from work. ‘ “The essential prerequisite to compensation is that the danger from which the injury results be one to which he is exposed as an employee in his particular employment,” and ‘[t]his requirement is met when, as an employee and solely by reason of his relationship as such to his employer, he enters a vehicle regularly provided by his employer for the purpose of transporting him to or from the place of employment.’ Here, again, it is the employer’s decision to make the transit part of the employment relationship.” (Zhu v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1039 [219 Cal.Rptr.3d 630].)

“[T]he mere payment of a travel allowance as shown in the present case does not reflect a sufficient benefit to defendant so that it should bear responsibility for plaintiff’s injuries.” (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1042 [222 Cal.Rptr. 494].)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, § 194
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3][c] (Matthew Bender)
2 Wilcox, California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.16[4] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior, § 100A.28 et seq. (Matthew Bender)