Ninth Circuit: Commute in Employer's Vehicle Not Compensable Time

Lojack, the car security company, required employees to use a company vehicle between home and the first work assignment of the day. Analyzing the FLSA and California law, the court held such time is not compensable. The employee did not have sufficient work responsibilities over and above using the company car. This part of the opinion was decided 2-1 with one dissenter.

The district court had rejected the employee's claim that time spent washing his uniform, the car, and other incidental work was not compensable "preliminary" activity under either federal or California law. The employees did not appeal that conclusion.

But the court of appeals held that mapping out his route, prioritizing his jobs for the day, and receiving instructions on the day's jobs were non-compensable either because they are part of the commute, or because they did not take up sufficient time and, therefore, were "de minimis." This decision was 2-1 with one dissenter.

The test for "de minimis" work that is not compensable includes three factors:

(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.

The court of appeals found, however, that employees may have to be compensated for a "postliminary" activity: uploading his data in his handheld computer to the company's system. The court found that doing so was integral to his job, required attention if the upload was unsuccessful, and was performed every day. The court said that the record was unclear as to whether the work was "de minimis," but concluded that it was not based on the facts before it. This decision was 2-1, with one judge dissenting.

The court also declined to adopt the "continuation of the workday" principle that other courts have adopted. Under that standard, even commute time is compensable if the employee performs substantial work at home and then heads out to work somewhere else.

So, the postliminary activity survived summary judgment. Everything else was rejected.

The opinion is Rutti v. Lojack Corp., Inc. and the opinion is here.