Article Contributor: John Boggs, Esq
Here’s the scenario: you require employees to use company-owned vehicles and travel from their homes to different places each day. Each morning before leaving home, the employees spend only a couple of minutes logging onto the company’s computer network to retrieve the day’s assignments. At the end of the work day, the employees return home, at which point they are immediately required to log back onto the computer and enter in their work hours – which the company has defined as the time the employee arrives at the first job up until the time the employee finishes the last job before starting the commute home. After entering in their work hours, the employees are then required to enter in the day’s receipts and any other notes that might be important for their manager. This often takes up to 15 minutes. The employees spend about one hour commuting to and from work each day, and they are free to determine their own travel routes and which assignments to drive to first.
Here are the questions:
- Is the one-hour commute time compensable as “hours worked”?
- Does the company need to pay the employees for the few minutes spent each morning retrieving the day’s work assignments?
- Does the company owe the employees for the time it takes to enter in the day’s receipts if that usually takes about 15 minutes?
The above scenario is derived from the facts in Rutti v. Lojack Corp., Inc., a decision by the 9th U.S. Circuit Court of Appeals that was asked to decide whether commute time in a company-owned vehicle was compensable and whether certain “preliminary” and “postliminary” off-the-clock activities were compensable as “hours worked.”
As the 9th Circuit explained, under most circumstances, commuting to and from work is not compensable as hours worked under both federal and California law. This is true even where the employee is required to use a company-owned vehicle. Under the federal Employee Commuting Flexibility Act, an employer need not compensate an employee for commuting to and from the “actual place of performance of the principal activity or activities” the employee is employed to perform. Similarly, the 9th Circuit explained that under California law, time spent commuting to and from the first place at which the employee’s presence is required by the employer should not be considered part of the day’s work, even where the employee is required to use an employer-provided vehicle. (Caveat: A problem could arise, however, if the employee is required to travel a distance beyond the normal commuting area, or if the employee is required to perform tangential duties related to the vehicle such as servicing the vehicle during commute times.)
Accordingly, under the scenario presented above, the commute time would most likely not be compensable. However, employers need to be careful in situations where using a vehicle is not simply incidental to the primary activity to be performed. For example, if an employee is required leave from home to pick up and/or deliver parts, then commute time could be compensable because the primary activity for which the employee was hired was to drive around and pick up and deliver parts. The drive time is integral to the primary job – in fact the majority of the job is driving, as the actual picking up or delivering of the part makes up only a fraction of the time spent performing the pick-up and delivery service.
So what about the time spent logging onto the computer to retrieve the day’s assignments before starting the commute? Most likely, this “preliminary” activity would be deemed “de minimis” and therefore not compensable. To be compensable, off-the-clock activities must be related to the employee’s principal activities and time spent performing those activities must be more than “de minimis” – which means more than minimal or lasting more than a few minutes. In our scenario, retrieving the schedule, even if arguably related to the employee’s work, never takes more than a few minutes each day, and therefore the time spent doing this would probably not be compensable.
Now, what about the 15 minutes it takes the employee to log onto the computer and enter the day’s receipts and make notes for the manager? This “postliminary” work is clearly related to the employee’s primary work activities. In addition, this work take much longer than a few minutes to complete, and can be easily calculable and accounted for as part of the work day. A court would most likely find that this time worked is more than minimal or “de minimis.” Accordingly, this 15 minutes of work should be considered compensable as “hours worked.”
In the current litigation climate, wage-and-hour claims are becoming more and more prevalent, so employers would be well advised to make sure their employees are not performing any significant work before or after clocking in or out for the day’s work, and that if they are, they are being paid for it. In addition, employers should make sure that if travel time is related to the primary activity for which the employee was hired, the time is recorded and paid for.
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