Court of Appeal Endorses Multiple Exceptions to the Going & Coming Rule

Yu Qin Zhu vs. WCAB, and Department of Social Services, B278696, June 2017, is the most recent in the continuing series of California cases grappling with the Going and Coming Rule. Here, Division Five of the Second Appellate District of the California Court of Appeal relies on two previously elucidated exceptions to the rule while accepting that even more exceptions may exist.

Yu Qin Zhu was riding her bicycle from one client of the Department of Social Services to another client when she was struck by a car and injured. Yu identified her clients from a list provided to her by the Department. She worked as a home caretaker on schedules that her clients and she set between themselves. On the date of injury, she worked with the first client in Monterey Park until 11:30 a.m. and was to begin with the second in Alhambra in the afternoon. The Department regularly paid her, and allowed her to select with whom, when and where she worked.

After trial on her Application for workers’ compensation benefits, the administrative trial judge found the injury compensable “because her ‘transportation between the clients’ homes was a mandatory part of the employment.’” The WCAB reversed this award, noting that the Department served only as a source of referrals to potential clients, and Yu could choose when and how to transit to her clients. The time, manner and means of transit were immaterial to the Department. Yu appealed the WCAB decision to the California Court of Appeal.

The Going and Coming Rule is a judicially crafted analysis of whether a particular injurious event arises out of and occurs in the course of employment (“AOE/COE”). The California Supreme Court endorsed the rule in Hinojosa in 1972 and wrote that injuries do not arise AOE/COE if they occur in the “ordinary, local commute that marks the daily transit of the mass or workers to and from their jobs; the employment, there, plays no special role in the requisites of portage except the normal need of the presence of the person for the performance of the work.”

Since that Supreme Court edict, the appellate courts have created a wide variety of exceptions to the rule. Some turn on whether the job can be performed without a car, whether the employer benefited from the presence of a car, whether the employee was on a special mission for the employer or whether the employment created a zone of danger within which the employee was forced to transit.

In Yu, the WCAB’s reversal of the trial judge was based on its conclusion that travel between clients at a time and to a place controlled by the employee was a normal commute and offered no special benefit to the employer. The Court of Appeal disagreed and held that the Department was a beneficiary of the transit as it allowed Yu to care for more than one client in a day, and increased the Department’s capacity to provide services. Replying to the Department’s argument that it did not require its caretakers to service more than one location in a day, the Court held that in the absence of a prohibition from the Department against doing so, the employer impliedly accepted the benefit of the employee’s efforts. The crux of the analysis is AOE/COE follows the employer’s benefit, though other exceptions apply, including that transportation was needed during the work day and the transit did not occur between Yu’s home and a fixed workplace and time.

The Court’s analysis follows the philosophy applied in many labor, employment and workers’ compensation cases. Where there is an employer benefit, then the employee must be accorded the benefits of employment, whether that benefit is overtime pay or workers’ compensation. The philosophy is fraught with peril, however, because extending exceptions, particularly in an increasingly flexible work economy, may ultimately eliminate the rule. Only further decisions will inform us whether the Going and Coming Rule has been pared to the minimum and covers only commutes to and from home from a traditional jobsite at a set time.

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June 26, 2017