THE “GOING & COMING” RULE REVISITED – A WIN FOR EMPLOYERS
In welcome news for employers, the California Court of Appeals has recently held that an employee’s hybrid work schedule did not turn the employee’s residence into a “worksite” for purposes of the “going and coming” rule.
The “going and coming rule” essentially exempts employers from tort liability that arise during the employee’s commute to and from the employer’s place of business, conditioned upon the employee not being engaged in any work-related activities during the commute.
In this recent case, the Plaintiff was injured in an accident caused by an employee of So. California Permanent Medical Group (SCPMG) who worked a hybrid schedule- some days working from home and some days working at SCPMG. On the day of the accident the employee was driving to work at SCPMG. The Plaintiff sued both the employee and SCPMG under a theory of respondeat superior and the “going and coming rule” claiming SCPMG should be liable because the employee was acting in the course and scope of her job duties by going to work.
SCPMG sought pre-trial dismissal of the case via a motion for summary judgment. In opposing the motion, the Plaintiff asserted the “going and coming” rule did not apply because SCPMG derived an incidental benefit from the employee’s use of her personal vehicle because it allowed her to commute from her two primary work locations —her home and her office at Kaiser Woodland Hills. The trial court disagreed, granted the Motion for Summary Judgment, and expressly stated that a “hybrid worker who works both in-office and at home is no more acting within the scope of employment when driving to and from work on in-office days than is a non-hybrid worker who drives to and from work every day.”
On appeal, the Plaintiff argued that granting the summary judgment in favor of SCPMG was in error because SCPMG failed to offer sufficient evidence negating the possibility that its employee was talking or texting with coworkers on her employer-issued cell phone at the time of the accident. The Court held it was not SCPMG’s burden to negate all possibility that its employee was working at the time of the accident and that it was sufficient that SCPMG testified the employee was not engaged in any work at the time of the accident. The burden then shifted to the Plaintiff to provide contradictory evidence demonstrating a triable issue – Plaintiff did not meet this burden.
The Plaintiff also argued the going and coming rule should not apply because SCPMG allowed the employee to work from home as well as at her office, and thus she was not “commuting” but instead was traveling between two job sites. The Court held that while there might be instances in which the home might be the employee’s “work site” such was not the case on the day of the accident – a day she was scheduled to work at the SCPMG office. The Court determined the employee was driving to work in the morning and confirmed the trial court’s grant of summary judgment.
Exceptions to the Going & Coming Rule
The Appellate Court acknowledged there are exceptions to the going and coming rule pertaining to liability during commute time, asserting that an employer may be held liable if the trip includes an incidental benefit to the company, such as when the use of a personally owned vehicle is a condition of employment, or the worker is running a special errand at the direction of their supervisor.
The case is significant for employers as it reinforces the concept of the going and coming rule as it applies to hybrid workers so that an ordinary commute to and from the employer’s place of business is considered outside the scope of employment – unless the employee is engaged in activities that are beneficial to the employer during the commute.
Chang v. So. Cal. Permanente Medical Group (CA2/1 B340770, filed 4/9/26, pub. 4/28/26)
WAGE AND HOUR CONCERNS FOR THE REMOTE WORKER
Six years after the concept of remote work was triggered by COVID-19, remote and hybrid work arrangements remain a part of the workplace. While these arrangements offer flexibility to employees, they also can create significant wage-and-hour compliance risks under California law.
It is well known that California imposes strict compliance with the complex landscape of wage and hour laws – specifically that non-exempt employees must be paid for all hours worked—whether or not the work was scheduled, requested, or authorized. In a remote environment, that obligation is harder to monitor and easier for employees to challenge.
Where Risk Is Most Likely to Arise
The following issues continue to drive wage-and-hour claims in remote and hybrid workplaces:
- Off-the-Clock Work: Any work performed but not recorded on a time card is considered “off-the-clock”—even if it was not authorized. Employers remain responsible for paying for this time.
Example: Employees checking or responding to emails or messages before or after scheduled hours. Even a few minutes per day, if unrecorded, can form the basis of a claim.
- Missed or Interrupted Meal and Rest Breaks: Remote work does not eliminate an employer’s obligation to provide employees with the right and opportunity to take compliant meal and rest periods. Employees may claim they were unable to take uninterrupted breaks due to workload, expectations, or lack of clear boundaries
- “De Minimis” Time Is Not a Defense in California: While federal law recognizes the concept of de minimis time (insignificant amounts of work that may go unreported and hence unpaid), California does not permit employers to rely on this doctrine for regularly occurring work. In Troester v. Starbucks Corp., the California Supreme Court rejected the routine use of the doctrine for small amounts of off-the-clock work.
What Should Employers Do Now?
To reduce the potential legal risks, California employers should take a proactive approach:
- Reinforce timekeeping expectations: Require non-exempt employees to accurately record all time worked, including brief, unscheduled tasks.
- Train managers and supervisors: Ensure managers understand they cannot encourage—or even implicitly permit—off-the-clock work. Any expectation of before or after-hours work must be properly recorded and compensated.
- Audit electronic communications: Periodically review emails and messaging to determine if there is any before or after-hours work.
- Implement clear reporting mechanisms: Provide employees with a way to report unrecorded time, without fear of retaliation.
- Evaluate workload and staffing: Off-the-clock work is often a result of unrealistic expectations or insufficient staffing.
- Document corrective actions: When issues arise, confirm that employees are fully compensated and document the steps taken to prevent recurrence.
Remote and hybrid work have not reduced wage-and-hour risk—they have shifted it into areas that are less visible but highly litigated. Employers that rely solely on written policies, without active oversight and enforcement, face potential exposure.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2026