Ninth Circuit Changes Its Mind a Little

We posted about Rutti v. Lojack Corp. here, and wrote an article about compensation for preliminary/postliminary work here. Rutti was a case in which the plaintiff and a class of workers for Lojack claimed they were not paid for off-the-clock work performed at home, as well as for their commutes to and from work. The initial panel opinion shut down most of Rutti's claims, holding Rutti's activities were either de minimus or not compensable under the FLSA and California law. The panel did find that Rutti's uploading data at the end of the day potentially was compensable, however.

The first panel voted 2-1 that Rutti's use of a company vehicle to commute to and from home was not compensable under California law. But, on rehearing, the panel changed its position. Judge Cynthia Holcomb Hall flipped her vote. So, the new opinion gave Rutti a trial on his claim that driving to and from work is compensable under California law. The issue is the amount of control Lojack exercised over the use of the company truck. Money quote from Judge Silverman's separate majority opinion (which looks a lot like his previous dissent):
Rutti was required to drive the company vehicle, 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. In addition, Lojack’s computerized scheduling system dictated Rutti’s first assignment of the day and the order in which he was to complete the day’s jobs. There is simply no denying that Rutti was under Lojack’s control while driving the Lojack vehicle en route to the first Lojack job of the day and on his way home at the end of the day.

So, employers who provide employees with company vehicles, take note. Too many restrictions on use of a company vehicle could turn commuting time into compensable time. And that means overtime, and maybe more meal periods, etc.

The case is still Rutti v. Lojack Corp. The new, fractured opinion, is here.