The whole business of "preliminary" and "postliminary" is a bit perplexing. Under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 ("FLSA"), employers need not pay for "activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." 29 U.S.C. § 254(a)(2). In Rutti v. Lojack Corporation, Inc. (August 21, 2009), the Ninth Circuit examined this admittedly "ambiguous" language in an attempt to discern whether "preliminary" and "postliminary" work by Lojack technicians was compensable.
The Court summarized the essential facts:
Rutti was employed by Lojack as one of its over 450 nationwide technicians who install and repair vehicle recovery systems in vehicles. Most, if not all of the installations and repairs are done at the clients’ locations. Rutti was employed to install and repair vehicle recovery systems in Orange County, and required to travel to the job sites in a company-owned vehicle. Rutti was paid by Lojack on an hourly basis for the time period beginning when he arrived at his first job location and ending when he completed his final job installation of the day.
In addition to the time spent commuting, Rutti sought compensation for certain “off-the-clock” activities he performed before he left for the first job in the morning and after he returned home following the completion of the last job. Rutti asserted that Lojack required technicians to be “on call” from 8:00 a.m. until 6:00 p.m. Monday through Friday, and from 8:00 a.m. until 5:00 p.m. on Saturdays. During this time, the technicians were required to keep their mobile phones on and answer requests from dispatch to perform additional jobs, but they were permitted to decline the jobs. Rutti also alleged that he spent time in the morning receiving assignments for the day, mapping his routes to the assignments, and prioritizing the jobs. This included time spent logging on to a handheld computer device provided by Lojack that informed him of his jobs for the day. In addition, it appears that Rutti may have completed some minimal paperwork at home before he left for his first job.
Slip op., at 11455. The district court disposed of all federal claims through a motion for partial summary judgment. The district court subsequently issued an order dismissing the remaining state law claims for lack of subject matter jurisdiction.
The majority first dealt with the claim for commuting time compensation, applying the Employee Commuting Flexibility Act ("ECFA"), 29 U.S.C. § 254(a)(2):
The ECFA’s language states that where the use of the vehicle “is subject to an agreement on the part of the employer and the employee,” it is not part of the employee’s principal activities and thus not compensable.
Slip op., at 11459. Evidently, all an employer needs to do is narrowly define principal duties, and the rest is gravy. The Court then rejected Rutti's contention that the heavy restriction on the use of the Lojack vehicle transformed the use of the vehicle from "incidental" to "integral."
The Court reached the same conclusion under California law. Despite the more flexible "control" standard set forth in Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000). The Court concluded that the use of the Lojack vehicle was more like a commute to a mandatory departure point than restricted time in an employer-controlled vehicle.
The Court then spent considerable time discussing the imprecise de minimis rule as it applied to Rutti's morning and evening activities. The Court determined that Rutti had not supplied evidence that his morning activities consumed more than a couple of minutes or involved anything other than commute preparation, which was noncompensable.
The evening data transmission time was not so easily relegated to the de minimis woodshed. Based on the evidence supplied in the District Court, the Ninth Circuit concluded that summary judgment was inappropriate. The Court noted that the Ninth Circuit had no fixed time standard under the rule: "Furthermore, we have not adopted a ten or fifteen minute de minimis rule." Slip op., at 11474. The evidence was also sufficient to overcome summary judgment:
Rutti asserts that the transmissions take about 15 minutes a day. This is over an hour a week. For many employees, this is a significant amount of time and money. Also, the transmissions must be made at the end of every work day, and appear to be a requirement of a technician’s employment. This suggests that the transmission “are performed as part of the regular work of the employees in the ordinary course of business,” Dunlop, 527 F.2d at 401, and accordingly, unless the amount of time approaches what the Supreme Court termed “split-second absurdities,” the technician should be compensated. See Anderson, 328 U.S. at 692.
Slip op., at 11476.
Circuit Judge Hall would have gone further, finding the postliminary data transmission by Rutti to be de minimis as well, despite the conflicting evidence. Slip op., at 11479.
Circuit Judge Silverman dissented with the majority analysis of whether Rutti was controlled by his employer during his commute:
The majority attempts to distinguish Morillion by summarily concluding that “Rutti’s use of Lojack’s automobile to commute to and from his job sites is more analogous to the ‘home to departure points’ transportation in Morillion than to the employees’ transportation on the employer’s buses.” Aside from the lack of factual analysis to support this ipse dixit, the majority also utterly ignores the relevant question under California law, which is whether Rutti was “subject to the control of an employer” during his mandatory travel time. A straightforward application of Morillion easily answers that question in the affirmative. Rutti was required not only to drive the Lojack vehicle to the job site, but was forbidden
from attending to any personal business along the way. Because he was obviously under the employer’s control in these circumstances he was, under California law, entitled to be paid.
Slip op., at 11483.
As an aside, I've noticed that when Ninth Circuit Judges dissent, they really dissent. No punches pulled. It just confirms that the Ninth Circuit is far from the monolith it supposedly presents.
So Brinker Restaurant v. Superior Court (Hohnbaum) moves a bit closer to the light at the end of the tunnel. After extensions were granted, the Petitioner and the Real Parties in Interest will both file their consolidated answers to amicus briefs on October 8, 2009. But that's no small task; by my quick count, there are 22 amicus briefs filed in Brinker (view the docket). That's twenty-two, give or take, in case you thought I double-clutched on the keyboard. I'd say good cause exists for an extension to file consolidated answers. Now, without having seen the amicus briefs, what do think the odds are that most of those amicus briefs (1) do nothing but repeat arguments that were in the 100+ page briefs by the parties, and/or (2) repeat other amicus briefs? My bet is that about 90% of the amicus briefing from both sides could be run through a shredder with no loss of any argument.
