Defining Compensable Work Time: Rutti v. LojackSecond Quarter 2010 – Newsletters California Update Employment Law
When are the things a nonexempt employee does before and after work compensable work time? That is the question that the Ninth Circuit dealt with in Rutti v. Lojack.
Plaintiff Rutti sought to bring a class action on behalf of the employer's nonexempt technicians who travel each day from worksite to worksite in an employer vehicle installing alarms in customers' cars. The plaintiff wanted to be paid for his off-the-clock time, including his pre-work activities to prepare for the day before he left home, his commute time and his post-work activities including completing a required report by modem.
In a bit of good news for employers, the Ninth Circuit found that most of these activities were not compensable work time for a variety of reasons.
The court found that the plaintiff's commute time was not compensable, even though he was provided with a company car. The court rejected the plaintiff's argument that the restrictions on use of the car imposed by the employer rendered his commute time an integral part of his workday. The restrictions had included a prohibition on personal use and transporting passengers, a requirement that the employee drive directly from home to work and from work to home and that the employee keep a cellular phone turned on.
The court also found that his preliminary activities of receiving assignments, mapping his route and prioritizing his jobs were not compensable either because such activities were either related to his commute or de minimus in that they took no more "than a minute or so."
The one issue that is still potentially compensable is post-work activities. The employer required its technicians to transmit data about their daily activities from home by modem at the end of the workday. Evidence presented indicated that this often took as much as 10 or 15 minutes, over several attempts, and required the employees to come back later to verify the transmission was received. The employer had written policies that required the data be transmitted between 7 p.m. and 7 a.m. While the district court had granted summary judgment to the employer on the issue of whether such post-work activity was compensable, the Ninth Circuit reversed and remanded for further proceedings. At issue is whether the transmission time was in fact de minimus, which the court found here was a factual question not appropriate for summary judgment. On remand, the issue will turn on three factors: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of additional work.
In another bit of good news, the court also rejected application of continuous workday doctrine, which the plaintiff argued should have extended his entire workday on both the front and back ends. The court rejected this theory because the preliminary activities and the commute time were not compensable, and there was sufficient leeway in the timeframe required for the postliminary data transmission to break up the workday ("postliminary" being a word that isn't found in the dictionary, but is used in the statute).
The lessons here are fairly good for employers. Giving a company car does not render commute time compensable. Planning your workday before work is not compensable, nor are minor tasks before and after work. But the real lesson here for employers, and the safest course, is to avoid mandating any specific pre-work or postwork tasks to be done on the employee's own time. If the nature of the work requires such tasks, this case provides guidance on how to structure those tasks to keep them non-compensable.