Guest Article

(From the March 22, 2010 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Ninth Circuit Holds "Off-the-Clock Activities" and "Commute Time" May Be Compensable

The Ninth Circuit Court of Appeals ruled that an employee's end-of-day work activities performed at home may be compensable under the Employee Commuter Flexibility Act, and his commute time may be compensable under California law.

The employee, who worked as a technician installing alarms in customer's cars, was required to commute directly from his home to a series of identified customer locations using a company car and, after returning home at the end of the workday, use a modem provided by the employer to upload the installation information he had recorded. The employee argued that his commute time and the time spent on the end-of-day uploading process were the performance of work for which he should be compensated. The district court granted summary judgment in favor of the employer, holding that the time was not compensable under either Federal or California law. The Ninth Circuit disagreed and vacated the judgment, explaining that the end-of-day activities may be compensable under the Employee Commuter Flexibility Act (ECFA), and the commute time may be compensable under California law.

Employee Commuter Flexibility Act Claim

The ECFA provides that employees need not be compensated for activities that are "preliminary" or "postliminary" to their principle work activities. However, activities related to the employee's principle work activities are compensable no matter where the work is performed, as long as the time spent is not de minimis. In this case:

The Appeals Court ruled that, at least on summary judgment, the district court could not have concluded that this end-of-day activity was not an integral part of the employee's principal work activities. Nor was it clear that the amount of time spent on the activity was de minimis. As a result, the Court vacated the summary judgment remanded the case back to the district court for further proceedings consistent with the Ninth Circuit's opinion to determine whether this end-of-day activity was compensable under the ECFA.

California Law Claim

Although the employee's commute time is not compensable under the ECFA, the Court ruled that it might be compensable under California law, which requires employees to be compensated for all time during which they are subject to the control of an employer. In this case:

As with the ECFA claim, the Court vacated the summary judgment and remanded the case back to the district court for further proceedings consistent with the Ninth Circuit's opinion to determine whether the employee's commute time was compensable under California law.

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations. If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Bart Massey 202.220.2104, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955. Copyright 2010, Deloitte.