Last year we told you about a recent 9th Circuit Court of Appeals decision on whether time employees spend commuting to a remote job site was compensable time. (See “Consider specific circumstances when weighing whether to pay for before- or after-work time.”)
At that time, the court ruled that under both California law and the federal Fair Labor Standards Act (), driving a company car from an employee’s home to his first job location of the day was not work time but was instead unpaid commuting time. We also told you that the court considered some time spent at home doing computer work might be paid time, based on the nature of the work.
Well, now the same 9th Circuit panel has changed its ruling with respect to interpretation of the California law.
Recent case: Mike Rutti worked as a technician for Lojack, installing alarm systems in automobiles. He sued the company on behalf of himself and other technicians, claiming it hadn’t paid him for all the time he expended on Lojack business during his workday.
Rutti was required to use a company vehicle and had to travel to each customer to install the alarms. Lojack paid its technicians from the time they arrived at their first assignment until they left the last assignment to head home.
Lojack didn’t pay for the time spent commuting from home to the first assignment or back home after the last assignment. It contended that was normal commuting time.
Rutti also claimed that before heading out of the house, he had to retrieve his assignments for the day and decide on the best route. At the end of the day, he had to plug a device into a modem supplied by the company and transmit information on each of the day’s jobs to the company’s computers.
He testified that this task took between five and 15 minutes.
Plus, Lojack required him to check an hour later to make sure the transmission went through and retransmit the information if the first attempt failed—as he claimed it frequently did.
In the latest round of Rutti’s lawsuit, two of the three judges on a 9th Circuit Court of Appeals panel concluded that the time Rutti spent in the company car going to his first assignment of the day was commuting time under the FLSA, but not under California law.
That’s because Lojack told Rutti he couldn’t make any stops along the way, satisfying the California rule for compensation that he was under his employer’s control while commuting.
Next, two judges said that the time he spent doing computer work in the evening should be paid time, while one judge did not.
The appeals court sent the case back to the trial court to determine exactly what tasks he performed on the computer and how long it took. (Rutti, et al., v. Lojack, No. 07-56599, 9th Cir., 2010)
Final note: No word yet on whether any of the parties will ask for the full 9th Circuit Court of Appeals to rule on this case, instead of a three-judge panel.