Posted by: Professionals In Human Resources Association (PIHRA) | May 3, 2010

Commute Time – Is It On or Off the Clock?

Rutti v. Lojack
We all know that travel to and from work is generally not compensable, right?  Not necessarily.  In an opinion recently reissued by the Ninth Circuit, the Court reminds us that under California law, travel time, including travel time to the initial work location, is compensable when the employee is “subject to the control of the employer” during the commute.  In Rutti v. Lojack (9th Cir. 2010) 596 F.3d 1096 (“Rutti II”), the Court explains what this “control” might look like in the context of a commute to the initial work location, and reiterates that the important thing to consider in evaluating whether commute time is compensable in California is the extent of control the employer has over the employee.

The Facts
Employee Mike Rutti worked for Lojack as a technician installing car alarms.  Most of the installations were done at client locations.  Rutti was provided a company vehicle that he used to drive from his home to the initial job site, then to subsequent job sites throughout the day, and finally, from the last job site back home.  Rutti was paid hourly beginning with the time when arrived at his first job location and ending when he completed his last installation of the day.

Rutti I – The First Opinion
Rutti filed a class action lawsuit alleging, among other claims, that Lojack should have paid him for time spent traveling to the initial work location and back home.  In its first opinion issued on August 21, 2009 (Rutti v. Lojack (9th Cir. 2009) 578 F.3 1084 (“Rutti I”)), the Ninth Circuit held that this commute time was not compensable under state or federal law, reasoning that the ordinary commute to the initial place of work and back home is simply not compensable time.  The Ninth Circuit reasoned that even though Rutti was required to drive a company vehicle, “he was free to determine when he left, his route, and which assignment he drove to first.”

The Court analogized Rutti’s case to the California Supreme Court case of Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 where the Court held that employees required to travel on company buses must be compensated for time spent waiting for and riding on the bus, but not for the time spent traveling to get to the bus.  In Rutti I, the Ninth Circuit held that Rutti’s commute to the initial work location and back home was similar to the time spent by employees in Morillion traveling to the bus station and back home, and was therefore not compensable.

Rutti II – The Ninth Circuit Changes Its Mind
Rutti asked the Ninth Circuit to reconsider.  On March 2, 2010, the Ninth Circuit reissued its opinion in Rutti II and this time, held that Rutti’s commute time was compensable under California state law because Rutti was required to drive a company vehicle and, in addition, Rutti “could not stop off for personal errands, could not take passengers, was required to drive the vehicle directly from home to his job and back, and could not use his cell phone while driving except that he had to keep his phone on to answer calls from the company dispatcher.”  The Court believed that these facts illustrated that Rutti was “subject to the control of the employer” and that therefore, his commute was compensable.

What Does this Mean for You?
If your California employees are required to use company vehicles and/or to travel to off site locations to perform work, attend meetings, take training courses, etc., you should consider whether there are any restrictions placed on the employee’s travel.  For example, consider the following:

  • Can the employee make stops for personal errands along the way?
  • Can the employee have passengers in the vehicle?
  • Can the employee take whatever route he/she chooses?
  • Can the employee drive his/her own vehicle?
  • Can the employee make personal calls from a cell phone while traveling?

The more restrictions placed on the employee during the commute, the more likely the travel time is compensable.

Alison Rothi, Esq. is an associate at Jackson Lewis LLP in the firm’s Orange County office and can be reached at (949) 885-1360 or rothia@jacksonlewis.com.  Founded in 1958, Jackson Lewis is dedicated to representing management exclusively in workplace law, now with over 600 attorneys practicing in 45 cities nationwide.  To learn more, please visit us at http://www.jacksonlewis.com.

Copyright 2010 PIHRA


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