Employer Not Required To Compensate Employee For Pre-commute Activities or Time Spent Commuting To Job Sites In Company-Owned Vehicle

In Rutti v. Lojack Corporation, Inc., (— F.3d —-, C.A.9 (Cal.), August 21, 2009), the United States Court of Appeals for the Ninth Circuit considered whether an employee was entitled to compensation for time spent commuting to job sites in a company-owned vehicle, for time spent on preliminary work in the mornings before he left for his first job, and for the time spent in the evenings uploading data to his employer’s computers. The Court of Appeals held that the employer is not required to compensate the employee for his commute time or for his morning activities, but may be required to compensate the employee for the time spent uploading data in the evenings.


Mike Rutti (“Rutti”) is employed by Lojack, Inc. (“Lojack”) as a technician. He installs and repairs vehicle recovery systems and most, if not all, of the installations and repairs performed by Rutti take place at the client’s location. Rutti is required by Lojack to travel to job sites in a company-owned vehicle. Lojack pays Rutti on an hourly basis from the time he arrives at his first job location of the day until he completes his final job. In the morning before he leaves his home for his first job, Rutti logs on to a Lojack provided computer device that informs him of the jobs to complete that day and then he spends time mapping his routes to job sites and prioritizing his jobs for the day. Some days Rutti completes a minimal amount of paperwork before he leaves home.

Rutti travels to job sites in a company-owned vehicle. Lojack places certain restrictions on Rutti’s use of the vehicle. Every evening after he returns home, Rutti must upload data about the work he performed that day from a portable data terminal (“PDT”) to Lojack computers. The PDT is connected to a modem provide by Lojack.

Rutti filed a lawsuit against Lojack on his own behalf and on behalf of all other Lojack technicians seeking compensation for the time they spent commuting to job sites in Lojack vehicles and the time they spent in the mornings and evenings on work-related activities. A federal district court granted summary judgment in favor of Lojack.


The Court of Appeals found that the time Rutti spends commuting and on his morning activities is not compensable. However, the Court of Appeals found that the time spent uploading data in the evenings may be compensable and remanded the matter back to the trial court for further proceedings on this issue.

Rutti claimed that Lojack violated the federal Fair Labor Standards Act (“FLSA”) and California law when it failed to compensate him for time he spent commuting in a company-owned vehicle. The court found that Lojack did not violate the FLSA. Rutti asserted that he was required to commute in the vehicle, and therefore, his use of the vehicle was not voluntary and was a condition of his employment. Rutti cited to a Department of Labor letter from 1995 which stated that an employee need not be compensated for the time spent commuting to and from work sites in a company-owned vehicle if the employee’s use of the vehicle “is strictly voluntary and not a condition of employment.” Rutti interpreted this letter as meaning that if the use of a company’s vehicle is not strictly voluntary because such use is a condition of employment, then the employer must compensate the employee for the commute time.

The court found that the passage of the Employee Commuting Flexibility Act (“ECFA”) in 1996 superseded the statement of the Department of Labor in its letter. The ECFA provides that if an employee’s use of an employer’s vehicle for commuting “is subject to an agreement on the part of the employer and employee,” then the use of the vehicle is not part of the employee’s principal activities and therefore is not compensable. Pursuant to this standard, the court found that Rutti’s commute time was not compensable.

The restrictions Lojack placed on the use of the vehicle also did not render the commute compensable. Lojack told Rutti that he could not use the vehicle for personal use, he could not transport passengers, he must drive directly from home to work and from work to home, and he must keep his cell phone on. The court found that these restrictions were not enough to render the commute compensable. “[T]he cost of commuting is not compensable unless the employees show that they ‘perform additionally legally cognizable work while driving to their workplace.'” Here, the restrictions imposed by Lojack did not rise to the level of burdening Rutti with additional work while driving to a job site.

Rutti also failed to show that he is entitled to compensation under California law. A California court previously held that an employer who required employees to ride employer-provided buses to work was required to compensate employees for the time spent waiting and riding the buses. The employer however was not required to compensate the employees for the time spent commuting to the place from which the buses picked up the employees. The court found that Rutti’s commute to and from job sites is analogous “to the home to departure points” commute in the previous case and held that Rutti’s commute was not compensable under California law.

The morning activities performed by Rutti before he travels to his first job site are also not compensable. In order to recover for preliminary or postliminary activities, Rutti must show that the off-the-clock activities are related to “principal activities” he performs for Lojack and that the time involved in performing those activities is not de minimis. The ECFA provides that “an employer need not compensate an employee for ‘activities which are preliminary or postliminary to'” his principal activities. The term “principal activities” is defined as “any work of consequence performed for an employer no matter when the work is performed.” Activities that occur prior to a shift are only compensable if the activities are an integral and indispensable part of the principal activities.

The court concluded that the morning activities performed by Rutti are not integral to his principal activities because the activities are mostly related to his commute. Although Rutti claims that he fills out some forms at home, there is no indication that the forms must be filled out prior to the time he reaches the job site. Also, the morning activities appear to be de minimis because they only appear to take a minute or so to complete.

The court, however, found that the postliminary activity of transmitting data may be compensable because it must be done every day and the data transmitted includes information about all of the jobs Rutti performed during the day. The court found that there are material issues of fact about how long the transmissions take to complete and whether the transmissions are de minimis. The Court of Appeals found that the trial court erred in granting summary judgment on this issue and remanded the case back to the trial court for further proceedings on this issue alone.

Finally, the Court of Appeals rejected Rutti’s claim that he is entitled to compensation for his travel time under the “continuous work doctrine.” Rutti failed to show that his preliminary activities extended his workday because those activities are not principal activities and are de minimis. Rutti’s postliminary activity of transmitting data also does not extend his workday because he is not required to make the transmissions at any particular time and he may use the time between his last job and the transmission for his own purposes.


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