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May 14, 2010
Is Commuting Compensable Under Federal Law?

Employers that exercise control over employee commute activities should consider a 2010 ruling that rendered an employee's commute "hours worked," Laura P. Worsinger, Esq., said in a BLR webinar titled "Reducing Overtime Costs: What You Legally Can—and Can't—Do to Keep Workers at Their Straight-Time Rates."

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Key Points for Employers

Under the federal Employee Commuting Flexibility Act (ECFA), an employer need not compensate an employee for commuting or for incidental activities before or after the employee's "principal activities" performed during a work shift.

However, the courts have been asked to consider what constitutes "commuting" and "incidental activities."

In Rutti v. Lojack (9th Cir. March 2010), the court decided that Lojack exercised sufficient control over the plaintiff to render his commute "hours worked." The court noted that:

  • Lojack required the plaintiff to drive the company vehicle directly from home to his job.
  • The plaintiff was prohibited from stopping for personal errands, taking passengers, and using his cell phone while driving, except to answer calls from the company dispatcher.
  • Lojack's computerized scheduling system dictated the plaintiff's first assignment of the day and the order in which he was to complete the day's jobs.

Work Performed from Home

The court also found that submitting reports via a home modem and completing paperwork before and after work was compensable, because the transmissions were related to the principal work activity.

In evaluating whether the time spent was de minimis (as a general rule of thumb, courts want to see more than 10 minutes), the court looked at three factors:

  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.

Laura P. Worsinger, Esq. is Of Counsel with the Los Angeles office of Dykema Gossett PLLC. She has broad counseling and litigation experience and specializes in the defense of employers in individual and class actions involving wage and hour violations, misclassification, discrimination, wrongful termination, and other employment-related proceedings. She can be contacted at lworsinger@dykema.com.

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