Understanding the Commercial Traveler Rule

by Sure Log
Attorney of Counsel
Michael Sullivan & Associates, LLP

Under the commercial traveler rule, an employee traveling on the employer’s business is regarded as acting within the course of employment during the entire period of his or her travel. Workers’ compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort and safety of the employee. But the commercial traveler rule does not cover all of an employee’s activities. Personal activity not contemplated by the employer might constitute a material departure from the course of employment. (Latourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 652.)

Nevertheless, consistent with the requirement of Labor Code § 3202 to liberally construe workers’ compensation statutes in favor of conferring benefits on the injured employee, the courts have liberally construed activities that are covered by the commercial traveler rule. The fact that the injury resulted from an employee’s negligence (see California Casualty Indemnity Exchange v. IAC (Monahan) (1936) 5 Cal. 2d 185) or the fact that the employee was engaged in an immoral or unlawful act at the time of injury (See Wiseman v. IAC (1956) 46 Cal. 2d 570) will not defeat a claim of compensation.

The liberal application of the commercial traveler rule was demonstrated recently in the 3rd District Court of Appeal’s decision in 3 Stonedeggs, Inc. v. WCAB (Nanez) (2024) 101 Cal. App. 5th 1136. In that case, an applicant was hired as a food service worker to provide meals for firefighters and supporting personnel at a remote fire base camp for a three-to-six-month period. The employer told employees that it did not want them leaving the camp for safety reasons, and employees were “really encouraged” not to drive on the roads. If an employee needed to leave camp, he or she was expected to tell a manager, and at no time was an employee to leave camp without arranging the leave with a supervisor multiple days in advance. The employer also prohibited alcohol and drugs at the camp.

Six days after arriving at the camp, after completing his breakfast shift, the applicant drove to town in his own car without telling his manager. He collided head-on with a van. The applicant suffered a severe closed head injury, and was comatose. That evening at the hospital, the applicant’s urine tested positive for THC. He had no memory of the accident, and the record did not disclose his reason for traveling to town, but a manager surmised that he was seeking cellphone service.

The 3rd District Court of Appeal concluded that the applicant’s injury was compensable under the commercial traveler rule. It explained that a commercial traveler is an employee whose work entails travel away from the employer’s premises. It found that although the camp was one of the employer’s bases of operations, there was no evidence the employer intended the camp to remain as a permanent or fixed base of operations, or as its headquarters. So, it believed that the applicant was a commercial traveler at the time of injury.

The court explained that to receive compensation for an injury that occurred during a period of commercial travel but during off hours, the employee must establish that the activity during the injury was a leisure activity that an employer might reasonably expect to be incident to its requirement that an employee spend time away from home. It found that despite the employer’s expectations and efforts to the contrary, it did not expressly prohibit the applicant from using his car while he was off work. The court found that it was reasonable for the employer to expect that the applicant would leave camp in his car during his off time as incident to being employed away from home, whether it was to obtain cellular service or even just to have a break from the camp for his leisure and comfort.

The court concluded that substantial evidence supported the board’s determination that departure from camp was a leisure activity that the employer reasonably might have expected, given that the applicant was away from home. It also rejected the employer’s argument that the applicant left camp to smoke marijuana, which was a prohibited activity, explaining that it could not annul the board’s decision just because the board chose one of two competing inferences reasonably drawn from the evidence.

The case originally was filed April 23, 2024 as an unpublished opinion. But after the California Applicant Attorneys’ Association filed a request for publication, on May 10, 2024, the case was certified for publication. A petition for review was filed with the California Supreme Court, and the case is assigned case no. S284848. As of this writing, the Supreme Court has not granted review, and given California’s policy of liberal construction in favor of the employee, this writer does not expect it to be granted.

Ultimately, despite the employer’s best efforts to show that the applicant engaged in a prohibited activity at the time of injury, the court found that the employer did not expressly prohibit him from using his car while he was off work. Instead, it found that the employer simply instructed the employees about its expectation that they do not leave camp and its policies if they had to leave. So, it concluded that violations of those expectations did not preclude compensation.

It is not clear whether an express prohibition from leaving the camp, or a violation of express rules, would have changed the result. It is possible that they would not. The court stated, “Even intentional or criminal misconduct that occurs within the course of one’s employment and causes injury does not necessarily preclude recovering benefits.” So this case must be understood as furthering how the courts liberally interpret the commercial traveler rule.