Employees who drive company vehicles between home and work will find little to cheer about in a recent Ninth Circuit decision . . . unless they live in California. In Rutti v. Lojack Corporation, a three-judge panel refused to relax the rule that commuting time is non-compensable under the Fair Labor Standards Act (FLSA).

The employee, who installed vehicle recovery systems, contended that his travel time between home and worksites was compensable under the FLSA and California law because his employer required him to drive company vehicles and significantly restricted his activities while doing so. For example, the employer prohibited the employee from transporting passengers and engaging in personal pursuits, and required him to drive directly to and from the worksite with his cell phone turned on.

All three judges rejected that argument under the FLSA, holding that use of an employer's vehicle to commute is non-compensable even if it is a condition of employment and that the restrictions placed on the employee's activities were incidental to his principal job activities. The unanimous panel also rejected the employee's argument that his commuting time was compensable under the "continuous workday doctrine," under which an employee's workday generally lasts until he has completed all of his principal activities during the day.

But the Rutti panel parted ways when it came to deciding the issue under California law. A two-judge majority found the tightly-controlled use of the company vehicle was compensable under California law requiring compensation for all time during which employees are "subject to the control of an employer." So the employee's claim under California law goes back to the trial court for further litigation.

The Rutti panel also issued a split decision as to whether certain activities of the employee at home before and after work was compensable off-the-clock work. The full panel rejected the employee's argument that his preliminary (i.e., before work) activities were compensable. Those activities consisted of such things as receiving, mapping and prioritizing jobs and routes assigned to him that day and occasionally filling out simple forms. The court found those activities were either incidental to the employee's principal job activities or so "de minimis" as to be non-compensable.

The court next considered the employee's postliminary activities. (The panel noted that "postliminary" is in the FLSA regulations but not in the dictionary.) Those activities included sending after-work transmissions of data from portable data terminals to the employers' computer system, a process that could be either quick or time consuming. Two of the judges held that the evidence was insufficient to conclude that the postliminary activities were either incidental or "de minimis" and therefore reversed the trial court's grant of summary judgment on that issue.