California Labor &
Employment Law Blog

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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Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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