While California’s wage-and-hour rules recognize a number of exceptions for employees subject to a collective bargaining agreement, the California Supreme Court’s denial of review in Gutierrez v. Brand Energy Svcs. of Calif. is a reminder that such exceptions are not without limits. Case No. A154604, review denied 9/9/20.

The California wage order at issue in Gutierrez provided that “all employer-mandated travel that occurs after the first location where the employee’s presence is required by the employer shall be compensated at the employee’s regular rate of pay.” (Wage Order 16, § 5(A)). The wage order further provided that this requirement applied “to any employees covered by a valid collective bargaining agreement unless the collective bargaining agreement expressly provides otherwise.” (Id. at § 5(D), emphasis added).

The employer in Gutierrez contracted with various refineries to erect and dismantle scaffolding used for maintenance and construction work in and around the refinery facilities. The plaintiff testified that he arrived at the refinery where he was assigned between 30 and 40 minutes prior to the start of his shift. He clocked in with his security badge at the refinery gate and was then transported by shuttle bus to a “lunch tent,” where he put on required safety equipment and attended a mandatory safety meeting. At the conclusion of the shift, the plaintiff took the same shuttle bus back to the refinery gate, where he would clock out. The employer required the employees to ride the shuttle bus and did not allow them to be dropped off or picked up at the lunch tent.

Based on an agreement that the employer negotiated with the union that represented its employees, the plaintiff and the other scaffolding workers were not paid for the time spent on the shuttle bus to the lunch tent after clocking in, or for the time spent putting on mandatory safety equipment before attending the safety meeting. Conversely, employees were paid for the time spent removing their safety gear and riding the shuttle bus back to the refinery gate after the conclusion of the workday.

The plaintiff brought a proposed class action against the employer claiming that he and the other scaffolding workers were entitled to be paid the applicable minimum wage for their pre-shift travel time. In light of the collective bargaining exception provided in § 5(D) of the wage order (quoted above) and the employer’s travel time agreement with the union, the trial court granted summary judgment in the employer’s favor.

The appellate court disagreed. It held that § 5(D) only allows a union to waive its members’ right to be paid their regular rate for travel time, and does not allow a union to waive its members’ entitlement to be paid the applicable minimum wage. In other words, while a union can negotiate over the amount of compensation that is owed for travel time, it cannot negotiate over whether such time is compensable at all. The California Supreme Court’s denial of review in Gutierrez allows this ruling to stand.

Bottom line: The collective bargaining exceptions to California’s wage-and-hour rules are not without limits. An employer should be mindful of such limits in negotiating with a union that represents its employees and structure relevant contract language accordingly.