In the 1990s cult classic, "Falling Down," a hapless engineer played by Michael Douglas finally snaps after getting caught in evening gridlock. Although most of us don't react to traffic in the same manner as Douglas' character, our daily commutes are nonetheless often marred by frustration. But what if your employer were required to compensate you for your commute to work?
Employers in California may soon be facing this reality when employees drive company vehicles in certain situations.
In Rutti v. Lojack Corp., No. 07-56599, the Ninth Circuit Court of Appeals held that the plaintiff, a Lojack technician, could seek compensation for time spent commuting to worksites in Lojack's vehicles.
Under California law, an employee may be considered "working" when the employee is merely subject to an employer's control. An employer must pay at least minimum wage for all "hours worked." California Industrial Welfare Commission's Wage Order 4-2001, ยง 2(K)
In a 2 to 1 decision, a Ninth Circuit appellate panel decided that Lojack exercised sufficient control over the plaintiff to render his commute "hours worked." Lojack required Rutti to drive the company vehicle directly from home to his job. He was prohibited from stopping for personal errands, taking passengers, and using his cell phone while driving, except to answer calls from the company dispatcher. In addition, Lojack's computerized scheduling system dictated Rutti's first assignment of the day, and the order in which he was to complete the day's jobs.
Employers that do not impose similar restrictions on employees using company vehicles should not be overly concerned by Rutti. The ruling, however, must be carefully considered by employers, like Lojack, that exercise control over employee commute activities.
And, while the Rutti decision did not outline specific criteria for determining how much control an employer must exercise for commute time to be considered hours worked, employers should carefully evaluate their policies related to commuting and employee pay. The more control exercised, the more likely the time will be found compensable.
