9th Circuit Court of Appeals Addresses Compensability Of Preliminary And Postliminary Activity Under FLSA

On March 2, 2010, in Rutti v. Lojack Corporation, Inc., ("Rutti II") the Ninth Circuit Court of Appeals withdrew its previous decision at 578 F.3d 1084 (9th Cir. 2009) ("Rutti I") and revisited its holdings regarding the extent to which commuting time is compensable time, the extent to which work related activities before work begins is compensable time, and the extent to which work related activities after work ends is compensable time under Federal law under the Fair Labor Standards Act and under the Portal-to-Portal Act as amended by the Employee Commuter Flexibility Act.

Rutti was employed by Lojack as technician to install and repair vehicle recovery systems in customers' cars. His duties required him to commute using a vehicle supplied by Lojack. He was paid on an hourly basis beginning when he arrived at the first job of the day and ending when he completed the last job of the day.

Rutti alleged Lojack was required to pay him and approximately 450 other technicians for time spent in the morning receiving assignments, mapping his routes, and prioritizing his jobs; for time spent driving from his home to the first job of the day and for time spent driving from the last job of the day to his home; and for time spent in the evening uploading data about jobs performed each day.

Based on the trial court record and on Federal law, the court held in Rutti II:

1. Lojack was not required to pay Rutti for his morning preliminary activities because those activities were related to his commute, which is presumptively non-compensable under the FLSA, were not integral to Rutti's principle work activities, and appeared to be de minimistime in any event and therefore non-compensable even if otherwise compensable.2. Lojack was not required to pay Rutti for commuting time even though Lojack placed restrictions on how Rutti could use the vehicle Lojack supplied to him because those restrictions were not so severe as to make the commuting time compensable.

3. Uploading data each evening appeared to be "part of the regular work of" Rutti and therefore compensable in nature, but Lojack might or might not be required to pay Rutti for those evening postliminary activities depending on whether that time is later determined to be de minimis or not. The court remanded that issue to the trial court for further consideration.

4. The record did not support the trial court's grant of summary judgment in favor of Lojack on Rutti's claims under California law, and the court remanded that issue to the trial court for further proceedings.

As previously reported here, there are important differences between what employers are required to do by the FLSA and what employers are required to do by California law. This case further illustrates some of those differences and how conduct permitted under Federal law might not be lawful under California law.

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