Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Ninth Circuit recently re-issued an opinion that illustrates the many work-time issues raised when employees commute between home and service sites in company vehicles. Rutti v. Lojack Corporation (9th Cir., No. 07-56599, Mar. 2, 2010). The court affirmed its initial, important finding that an employer can make commuting in a company vehicle a condition of employment without affecting the compensability of the commute time under the federal Employment Commuter Flexibility Act (ECFA). The court of appeals affirmed its initial finding that small amounts of time spent in the morning working out the route for the day were not compensable work time either because the time was incidental to the commute and, therefore by definition not work time, or was so de minimis as to not be considered to be work time.
The court was again divided as to whether the time spent in the evening uploading a record of the day’s service activities was de minimis. That issue will also be resolved by the district court on remand in consideration of the amount of time spent in the activity, the difficulty of recording the time, and the cumulative amount of time involved in the activity. While the court did not resolve whether the uploading time was work time, the court did affirm its important finding that the uploading activity, which could take place at any time in the evening, would not turn the commute from the last service location to home, into work time. In this regard, the court rejected the plaintiff’s argument that the commute home from the last service location was part of a continuous work day and therefore work time because the commute was travel from a location where service work was performed to a site where uploading work was performed.
The court divided sharply as to whether the commute time would be work time under California law, given the requirement that employees go directly to and from service sites without undertaking any personal tasks along the way. California has no specific exclusion of commute time from work time similar to ECFA, apart from one exception for ride sharing. The California courts have, so far, focused on how much control an employer exercises over travel time when determining whether the travel time is work time or not. Whether the plaintiff’s commute time is work time under state law will be resolved on remand to the district court.