Claims for unpaid mileage costs are common in California. Employers often do not pay employees for mileage they incur. Or, also common, they reimburse mileage at the wrong rate. Below is what you may need to know for a claim for unreimbursed mileage.
The Law: Employers Must Reimburse for Job-Related Mileage
California Labor Code section 2802 requires employers to reimburse their employees for mileage they incur in the course of their employment. Section 2804 says that employees cannot “waive” (i.e., forfeit) their right to receive reimbursement for miles driven for work. These statutes also allow an employee to recover the unpaid mileage in a court action, plus interest on the amounts owed and his or her attorney’s fees and costs incurred in collecting the unpaid mileage.
What is the Correct Reimbursement Rate for Miles Driven for Work?
The California Department of Labor Standards Enforcement (DLSE) has opined that the IRS rate for mileage should be used to determine what is owed to the employee for miles driven, absent contrary evidence showing that the use of the car cost more or less than that rate.
Example: As of July 1, 2011, the IRS reimbursement rate for mileage is $0.555 (55.5 cents) per business mile driven. If you drove 100 miles for work since then, your employer would owe you 100 x $0.555, for a total of $55.50.
Here is a historical listing of the IRS mileage reimbursement rates:
- IRS Mileage Reimbursement Rate for 2007: 48.5 cents per mile
- IRS Mileage Reimbursement Rate for 1.1.08 to 6.30.08: 50.5 cents per mile
- IRS Mileage Reimbursement Rate for 7.1.08 to 12.31.08: 58.5 cents per mile
- IRS Mileage Reimbursement Rate for 2009: 55 cents per mile
- IRS Mileage Reimbursement Rate for 2010: 50 cents per mile
- IRS Mileage Reimbursement Rate for 1.1.2011 to 6.30.11: 51 cents per mile
- IRS Mileage Reimbursement Rate for 7.1.11 to 12.1.11: 55.5 cents per mile
I’m owed mileage from my employer, what can I do?
A California employee owed for unpaid miles driven for work can bring his or her claim in civil court or with the Labor Commissioner. Civil court claims can potentially go back four years, so long as you assert a claim for unfair business practices in connection with the failure to reimburse for miles driven. Claims for mileage before the Labor Commissioner can only go back three years.
Additional considerations for Labor Commissioner claims is that you cannot recover your attorney’s fees in that venue. The Labor Commissioner is without authority to have the defendant pay your attorney’s fees and costs. A judge, however, in a civil case can award attorney’s fees and costs.
My employer fails to pay mileage to all employees. Can I bring a class action?
Generally speaking, a class action is possible for unreimbursed mileage claims. Strauss & Strauss, APC has represented many classes of individuals in claims for unpaid business miles driven in California. Contact us now for more information.
My employer calls me an independent contractor. Am I entitled to reimbursement for mileage?
Generally speaking, an independent contractor cannot use Labor Code section 2802 to recover unreimbursed mileage. If, however, the contractor’s agreement with the employer states that the employer will reimburse for mileage, that could give the contractor an ability to collect pay for the miles driven.
It cannot be stressed hard enough that the majority of folks deemed “independent contractors” in California are really employees. See our comments regarding misclassification of 1099 contractors as employees. If you believe you have been misclassified as an independent contractor, contact us now to discuss your potential legal claims, including claims for reimbursement of miles driven.