Plaintiff filed a class action under the FSLA and California law, alleging that the employer failed to compensate him for work off the clock. ?The District? Court? granted? summary? judgment? in favor of the employer, and the Ninth Circuit affirmed in part and reversed in part.

Plaintiff 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. ?Plaintiff Rutti was employed to install and repair vehicle recovery systems in Orange County, and was 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.

Rutti also 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 completed some minimal paperwork at home before he left for his first job.

During the day, Rutti recorded information about the installations he performed on a portable data terminal (?PDT?) provided by Lojack.?? After he returned home in the evening, he was required to upload data about his work to the company. The Court ruled that commuting with a company car did not entitle an employee for reimbursement under the Employee Commuting Flexibility Act, 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. ?Id. The plaintiff argued that the use of the company car was not voluntary, but required.?? The Ninth Circuit, however, was unconvinced, and ruled that no compensation is required, even if the use of a company car is a condition of employment.

The plaintiff argued that the use of the vehicle was compensatory, because the restrictions placed upon its?? use?? by?? the?? company?? were?? more?? than ?incidental?, and were, therefore, part of his principal activities.?? ?The Court rejected this contention as well, because he failed to show that the employer?s restrictions amount to ?additional legally cognizable work.? To be entitled to compensation for off-the-clock activities, plaintiff must show that they are related to his ?principal activities? for Lojack. ?In addition, the activity that might otherwise be compensable is not, if the time involved is de minimis.?? Pre- shift? activities? are? compensable? if they? are? an ?integral and indispensable part of the principal activities for which covered workmen are employed,? ?and ?that ?the ?term? ?principal activities? is to be liberally construed ?to include any work of consequence performed for an employer,? no? matter? when? the? work? is performed.?? ?Time spent waiting for work is compensable if the waiting time is spent ?primarily for the benefit of the employer and his business.??? ?If? the? employee? was? ?engaged? to wait,? it is compensable. ?If the employee ?waited to be engaged,? it is not compensable.?? ?The proper test ?is not the importance of on-call work to the employer, rather the test is focused on the employee and whether he is so restricted during on-call hours as to be effectively engaged to wait.?In considering whether the amount of time claimed was de minimis, the Court will consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity? of? the? additional? work.?? ?The? Court ruled that filling out forms prior to work, and prioritizing work, were de minimis, and that transmitting data from home, after the work, was an integral part of the job, and was not, as a matter of law, de minimis. The Court ruled that plaintiff was not entitled to compensation for time commuting to and from work under the Continuous Work Day rule.

Rutti v. Lojack Corporation, Inc., — F.3d — (9th Cir. August 21, 2009) (Callahan, Hall, Silverman).