ABTL Report - Fall 2026 Edition - Flipbook - Page 14
ABTL - Los Angeles
Fall 2026
Overview of the Workers’ Compensation System...continued from Page 7
Bd. (1972) 8 Cal.3d 150, 157.) When applying this rule the
employment relationship typically begins when the employee
enters the employer’s premises. (Jones v. Regents of University
of California (2023) 97 Cal.App.5th 502, 508.)
Cal.3d 956, 962, fn. 3 (Hinman).) The scope of the common law
test for respondeat superior liability is more restrictive than the
“in the course of employment” test in workers’ compensation.
(Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.
App.4th 458, 468, citing Saala v. McFarland (1965) 63 Cal.2d
124, 128–129, fn. 3 (Saala); Bailey v. Filco, Inc. (1996) 48
Cal.App.4th 1552, 1562 [“the test for workers’ compensation
liability is broader than that for respondeat superior”].) An
employee can suffer an injury that is compensable under
workers’ compensation and, at the same time, not have been
acting within the course and scope of employment under the
doctrine of respondeat superior. (Munyon v. Ole’s Inc. (1982)
136 Cal.App.3d 697, 703.)
Because some courts have found the “going and coming”
rule harsh upon application, they have crafted recognized
exceptions. (Santa Rosa Junior College v. Workers’ Comp.
Appeals Bd. (1985) 40 Cal.3d 345, 354–358.) Under the
“travel expense” exception, for example, when an employer
compensates an employee for the commuting time there is
an implied agreement that the employment relationship shall
continue during the period of “going and coming.” (Kobe v.
Industrial Acc. Commission (1950) 35 Cal.2d 33, 35.) Under
the “required transportation” exception an employee is within
the course of employment while traveling to or from work if the
employer requires the employee to bring his or her automobile
to work for the bene昀椀t of the employer. (Smith v. Workmen’s
Compensation Appeals Bd. (1968) 69 Cal.2d 814, 815–816.)
If the employee is off premises but is traveling on a special
errand done at the request of the employer, the employee
is in the course of employment under the “special mission”
exception. (Dimmig v. Workmen’s Comp. Appeals Bd. (1972)
6 Cal.3d 860, 868.)
For example, in Saala, an employee was injured when a coemployee struck her with a car in their employer’s parking lot.
(Saala, supra, 63 Cal.2d at p. 125.) The employee received
workers’ compensation benefits for her injuries under “the
established rule that ‘injuries sustained by an employee
while . . . on premises owned and controlled by his employer
are generally deemed to have arisen out of and in the course
of the employment.’ ” (Id. at p. 126.) When the employee
sued the coemployee, the coemployee argued she should be
immune from suit because the employer is vicariously liable
under respondeat superior. (Id. at p. 127.) The court disagreed
that the Legislature intended to exempt all employee actions
causing harm to coemployees from the common law liability
retained in Labor Code section 3852 to the same extent that an
employer is exempt from civil liability because of its workers’
compensation provision. (Saala, at p. 128.) The court held the
employer was not vicariously liable for the coemployee’s tort
under respondeat superior because the defendant was not “still
serving her employer when she was in the act of removing
her automobile from the parking lot after completing her work
shift.” (Id. at p. 129.)
Under the “home as a second jobsite” exception,
“[w]ork done at home may exempt an injury occurring during
a regular commute from the “going and coming” rule,” thereby
rendering it compensable under the Act, “if circumstances
of the employment–and not mere dictates of convenience to
the employee–make the home a second jobsite.” (Wilson v.
Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181, 184.) In
Wilson, a teacher was injured during her regular commute.
(Ibid.) She argued that because she had brought work home
the previous night, the injury fell into the “home as a second
jobsite” exception. (Ibid.) The California Supreme Court did
not agree. (Ibid.) The performance of a “tidbit of work” at
home will not avoid the “going and coming” rule. (Bramall v.
Workers’ Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 158.)
If the home becomes a second jobsite then an injury sustained
while traveling between work and home is compensable.
(Wilson, at p. 184.)
Subject to certain exceptions, under the “going and
coming” rule an employee’s injury sustained on an ordinary
work commute does not occur in the course of employment
and is not compensable.
Under the “going and coming” rule, an employee’s injuries
are not considered to have occurred within the course of
employment—and thus are not compensable under the Act—
if, at the time, the employee is traveling to or from work on
an ordinary commute. (Hinojosa v. Workmen’s Comp. Appeals
Practitioners should be aware that the “going and coming”
rule can apply outside the workers’ compensation context to
determine whether an employee’s tortious conduct occurred in
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