Aug. 24 2009

Ninth Circuit Weighs In on Commute Time and De Minimis Time

Topics: Court Decisions, Wage & Hour Issues

Last week, the Ninth Circuit issued its decision in Rutti v. Lojack Corp., holding that a technician who installed vehicle recovery systems at customer locations was not entitled to compensation for time spent commuting from home to the first job site (and back home after the last job site) each day in a company vehicle. The court further held that the employee was not entitled to compensation for time he spent performing preliminary activities at home (e.g. reviewing assignments and mapping his route for the day) prior to leaving for the first job site. The court reasoned that the time spent performing this preliminary work was "de minimis" and, therefore, not compensable.

Although the court came down in favor of the employer on the issues of commuting time pay and pay for preliminary work, the court refused to find in the employer's favor on the issue of pay for postliminary work (work performed at home at the end of the day). The trial court had ruled in favor of the employer on this issue by granting the employer summary judgment based on a finding that the employee's postliminary work (which consisted of transmitting a report of the day's activity to the employer) was alsode minimis and, therefore, not compensable. TheNinth Circuit reversed reversed, holding that there was a factual dispute regarding the amount of time spent by employees on postliminarywork (ranging from 1-2 minutes per day to 15 minutes per day) and that this dispute precluded a finding on summary judgmentthat the work was de minimis and not compensable. The court remanded that issue for further trial court proceedings.

The Lojack decision, including some interesting dissenting opinions, provides further guidance for employers on how courts analyze the compensability of commute time and off the clock time spent on preliminary and postliminary work.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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