Labor & Employment Law

Preliminary and Postliminary Activities In A Different Context

By Mark Tabakman

I have posted numerous times on the issue of when preliminary or postliminary job 'duties' become compensable.  If the employer is unaware that they might, or missed the mark, the result can be and often is a class action lawsuit, oftentimes seeking overtime compensation, as these 'work activities' often bring the hours worked to more than forty in a week.  In Rutti v. Lojack, the Ninth Circuit Court of Appeals dealt with an unique variation on this theme, one which has troublesome ramifications for all employers.

The plaintiff sought to bring a class action on behalf of the employer's nonexempt technicians who travel each day from worksite to worksite in an employer vehicle installing alarms in customers' cars.  The plaintiff wanted to be paid for his pre-work activities, his commute time and his post-work activities including completing a required report by modem.

The Ninth Circuit found that most of these activities were not compensable work time.  The court found that the plaintiff's commute time was not compensable, even though he was provided with a company car.  The court rejected the plaintiff's argument that the restrictions on use of the car imposed by the employer rendered his commute time an integral part of his workday.  The restrictions had included a prohibition on personal use and transporting passengers, a requirement that the employee drive directly from home to work and from work to home and that the employee keep a cellular phone turned on.

The court also found that his preliminary activities of receiving assignments, mapping his route and prioritizing his jobs were not compensable either because such activities were de minimis. The employer required its technicians to transmit data about their daily activities from home by modem at the end of the workday and this took 10-15 minutes, and required the employees to come back later to verify the transmission was received.  Whether these activities are compensable will depend on: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and, (3) the regularity of additional work.

There are valuable lessons here for employers.  Giving a company car does not render commute time compensable.  Planning your workday before work is not compensable, nor are minor tasks before or after work.  But the real lesson here for employers, and the safest course, is to avoid mandating any specific pre-work or post-work tasks to be done on the employee's own time.  If the nature of the work requires such tasks, this case provides guidance on how to structure those tasks to keep them non-compensable.
 

Full post as published by Wage & Hour - Development & Highlights on April 30, 2010 (boomark / email).