Shift activities are compensable if they are an “integral and indispensable part of the principal activities for which covered workmen are employed.”
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Wage and Hour Update:
Travel Time Not Compensable
But After Hours Data Upload Should Be Paid
By Christopher W. Olmsted
As a general matter, employees are not compensated for regular commute time. But sometimes the line between commuting and “on the clock” driving may be hard to define. Moreover, it is not always clear whether an employee must be compensated for performing minor tasks before or after shifts. A recent case titled Rutti v. LoJack provides a good example of just how fuzzy the line can be.
An Alarming Daily Routine
Mike Rutti installed alarms in customers’ cars for Lojack. He drove from his home to the client’s location in a company vehicle to perform the service. Before leaving home each morning, he planned daily route and filled out some paperwork. Rutti was paid by Lojack on an hourly basis for the time period beginning when he arrived at his first job location and ending when he completed his final job installation of the day. Once he arrived at home, Lojack required him to upload data from his hand-held computer device to the Lojack computer network by use of a telephone modem.
Mr. Rutti thought that he was entitled to pay for the time he spent commuting to worksites in Lojack’s vehicle and for time spent on preliminary and postliminary activities performed at his homes. He sued Lojack on behalf of about 450 other technicians. He alleged violations of California Labor Code as well as the federal Fair Labor Standards Act (“FLSA”).
The district court granted a motion for summary judgment in favor of Lojack, finding that the workers were not entitled to compensation for the pre- and post- work activities, nor were they entitled to pay for commuting in the company vehicles. Mr. Rutti appealed, and the Ninth Circuit Court of Appeal reviewed the case.
Commuting Not Compensable Under Federal Law
The court examined the employees claim for commuting time pay under the federal Employee Commuting Flexibility Act (“ECFA”). In 1996, Congress amended the Portal-to-Portal Act by enacting the ECFA. The statute provides that an employer need not compensate an employee for commuting, or for incidental activities before or after the employees “principal activities” performed during a work shift. The question then becomes what is “commuting” and what is “incidental activities”?
Commuting In Company Vehicle Not
Compensable Under Federal Law
The ECFA specifically provides that commuting time in a company-provided vehicle is not compensable if the employee and employer have entered into an agreement regarding the employee’s use of the vehicle.
Rutti argued that he should be nevertheless be compensated for commuting to the first job location in the company vehicle because he was required to do so as a condition of employment. That is, he didn’t really have a choice about driving the vehicle. The court rejected this idea. The ECFA permits the “agreement” between employer and employee regarding the use of the vehicle to be a condition of employment. Thus, under federal law, even if the employee has to drive the vehicle in order to keep the job, he has entered into an agreement regarding the use of the vehicle and his commute is not compensable time. (It is not a bad idea, however, to put the agreement in writing or in a policy.)
Restrictions On Use OK
The court also rejected Rutti’s argument that the commuting rule should not apply to him on account of the more than incidental the restrictions placed by Lojack on his use of the vehicle. These included rules against using the vehicle for personal pursuits and transporting passengers, the requirement that he drive directly from home to work and from work to home, and the requirement that he have his cell phone on. The court found that such restrictions were routine and did not amount to the employees engaging in their principal work during the commute to the first job location. Therefore Rutti and the other employees were simply commuting to and from work, and were not “on the clock.”
Commute Not Compensable Under California Law
The court made the same determination under California law. Employers do not need to pay for commute time just because they provide a company vehicle. Quoting the California Supreme Court in a case titled Morillion v. Royal Packing Co., the court noted: “we emphasize that employers do not risk paying employees for their travel time merely by providing them transportation.” The court continued: “Although Rutti was required to drive the company vehicle, he was free to determine when he left, his route, and which assignment he drove to first.”
It is possible that had the company controlled the time Mr. Rutti started his commute, or the specific route he took to work, the court could have ruled in favor of the employees.
Some Off-Clock Activities Were Compensable
The court did rule in favor of the employees with respect to some off-clock activities. The court concluded that the time spent after shift uploading computer data from the hand-held device to the Lojack computer system could be compensable.
Citing an earlier case titled Lindow v. United States, the court stated the rule that pre-shift activities are compensable if they are an “integral and indispensable part of the principal activities for which covered workmen are employed.”
However, employees cannot recover for otherwise compensable time if it is “de minimis.” In Lindow, the court disregarded seven to eight minutes spent daily by employees who voluntarily reported to work early to relieve outgoing employees because it was de minimus.
“When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.”
The court determined that Mr. Rutti spent only a few minutes planning his route and preparing papers in the morning. The activity was not integral to his work and in any event was de minimus based on the little time involved.
On the other hand, the court determined that the time spent uploading data after work might be compensable. The data transmission was required by Lojack and was integral to the business because it provided data regarding services provided during the day. Further, in some instances the transmission took more than ten minutes of the employees’ time. This may nor may not be de minimus. A hearing on the matter would be necessary. Therefore, the court determined that the matter should return to the district court for further proceedings.
Practical Tips
liEmployers need not pay employees for their commute time, unless the employer exercises control over the commute time. It is therefore a best practice to avoid controlling when an employee leaves for work, the route he takes, or the activities he must engage in on the way.
liEmployers requiring employees to drive company vehicles should create written policies or agreements regarding the use of the vehicles, with care towards avoiding too much control such that commute times are compensable.
liCarefully monitor pre- and post- shift activity to ensure that employees are not engaging in off the clock activities without pay. Consult with legal counsel to determine whether certain activities may fall under the “de minimus” exclusion.
Related article:Wage & Hour Update: Do After-Hours Emails Create Employer Wage Liability?
Download entire September 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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