A. Ordinary Commute Time and Commute-Related Activities.
The Fair Labor Standards Act (the “FLSA”) does not require employers to compensate employees for ordinary home-to-work travel regardless of whether the employee works at a fixed location or multiple job sites. 29 C.F.R. § 785.35. Moreover, an employee is not entitled to wages for administrative duties related to his commute. For example, in Rutti v. Lojack Corp., Inc., the plaintiff, a Lojack technician, was not entitled to compensation for time spent receiving and prioritizing his assignments, and mapping routes to his various job sites at home. 596 F.3d 1046, 1057-1058 (9th Cir. 2010). Such administrative tasks were related to the plaintiff’s commute and, therefore, not compensable under the FLSA. Id.
B. Commute Time in an Employer-Owned Vehicle.
An employee’s commute in an employer-owned vehicle is no exception to the FLSA rule that ordinary home-to-work travel is not compensable. Under the Employee Commuter Flexibility Act (the “ECFA”)1, an employee’s use of an employer-owned vehicle to travel to and from home does not entitle the employee to compensation for commute time when the use of an employer’s vehicle is limited to the normal commuting area of the employer’s business and subject to an agreement between the employer and the employee. 29 U.S.C. § 254(a)(2). The “agreement” required by the ECFA is not a difficult standard, and may be present when the use of the employer’s vehicle is a condition of employment. Rutti, 596 F.3d at 1052.
Just as ordinary commute time in an employer-owned vehicle is not compensable, time spent performing activities “incidental” to the use of the employer-owned vehicle is not considered compensable work under the FLSA. 29 U.S.C. § 254(a)(2). Activities such as cleaning an employer-owned vehicle and visual inspections of fluid levels and tire pressure are “incidental” to the use of any vehicle. Espinoza v. County of Fresno, No. 1:07-cv-01145-OWW-SMS, 2011 WL 3359632, at *8 (E.D. Cal. Aug. 3, 2011). Accordingly, off-duty time spent completing the above “incidental” activities is not entitled to compensation under the FLSA2.Id.
Moreover, employer-imposed restrictions on an employee’s use of the employer’s vehicle when commuting to work does not affect the non-compensability of commute time. Rutti, 596 F.3d at 1053. The Ninth Circuit held that Lojack’s requirements that its employees refrain from using company-owned vehicles for personal pursuits or to transport non-employee passengers, drive directly to and from work, and turn-on their cell phones while commuting were “incidental” to the employees’ use of the vehicles and, therefore, not part of their principal activities. Id. Since commuting with such restrictions was not a principal activity, the commute time was not compensable. Id. Similarly, the requirement that patrol deputies monitor their communications while commuting in county-owned patrol vehicles so that they may respond to a call if needed did not render their commute a principal activity compensable under the FLSA. Espinoza, 2011 WL 3359632, at *6. An employer’s control over how an employee uses an employer-owned vehicle when commuting, therefore, generally will not make ordinary commute time compensable under federal law.
Despite the decisions discussed above, California employers, however, must note that an employer’s control over an employee’s commute renders commute time compensable under California law. In Rutti, the Ninth Circuit reversed the trial court’s summary judgment for Lojack on Rutti’s state law compensation claims for time spent commuting in Lojack’s vehicle. Rutti, 596 F.3d at 1061-1062. The court held that California law requires that an employee be paid for all time during which he is subject to the control of the employer, including time commuting when the employee is required to use the employer’s vehicle and is prohibited from making personal stops, transporting non-employee passengers, or attending to any personal business when driving the vehicle. Id. Accordingly, restrictions placed upon how an employee commutes in an employer-owned vehicle will make such commute time compensable under California law.
C. Administrative Tasks Completed at Home and the Continuous Workday.
The Portal-to-Portal Act states that employers are not required to compensate employees for activities that are preliminary or postliminary to their principal employment activities. 29 U.S.C. § 254(a). The continuous workday rule, however, limits the reach of the Portal-to-Portal Act by defining the compensable workday as the period of time “between the commencement of the employee’s first principal activity and the completion of his last principal activity.” 29 C.F.R. § 790.6. Accordingly, non-compensable preliminary and postliminary activities must take place outside of the continuous workday (i.e., before or after the first and last principal activity). Id.
Relying upon the continuous workday rule, employees have argued that time spent commuting is compensable when an employee is required to perform administrative tasks for his employer at home either before or after traveling to a job site. For example, in Kuebel v. Black & Decker Inc., the plaintiff, a Retail Specialist for Black & Decker, did not report to a central office but conducted administrative duties at his home before and after stocking, pricing and displaying Black & Decker products in retail stores within his service-territory. 643 F.3d 352, 355 (2nd Cir. 2011). The plaintiff completed the following administrative duties at home before or after he visited his assigned retailers: synchronized his personal digital assistant to Black & Decker’s server, read and responded to company emails, checked voicemail, printed and reviewed sales reports, organized “point-of-purchase” materials, created display signs, completed online training courses, and loaded and unloaded his car. While the time spent performing such administrative duties was compensable under company policy, the administrative activities completed at the employee’s home did not begin or end the continuous workday so as to make his commute to and from home compensable. Kuebel, 643 F.3d at 360-361.
The Second Circuit emphasized that the plaintiff’s flexibility in completing the administrative tasks, including when to complete such duties, determined that such activities did not begin or end the continuous workday. Id. For example, the plaintiff could have completed his administrative duties for Black & Decker, dropped-off his children at school, purchased breakfast, and then traveled to a job site. Similarly, in Rutti, the Ninth Circuit held that the technician’s duty of transmitting information to Lojack using a Lojack modem in his home did not extend his workday to include his commute home3. Rutti, 596 F.3d at 1060. The court reasoned that given the scope of time the technician had to complete the transmittal (from 7:00 p.m. to 7:00 a.m.), he could use that period for his own purposes, and was relieved from his duty with the exception of transmitting the data to Lojack at a time he found convenient4. Id. at 1060-1061.
These recent decisions conclude that the performance of administrative duties at home cannot be held to begin or end the continuous workday considering an employee’s flexibility in determining when to complete such duties and freedom to complete non-work tasks in between performing work and arriving at the job site or returning home. Accordingly, commute time immediately before or after completing administrative duties at home is considered normal home-to-work travel and, therefore, is not compensable under federal law.
Tanya Guzman is an associate and a member of the Labor & Employment practice in the Los Angeles office of O’Melveny & Myers.
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