Ninth Circuit Attempts To Navigate Through Commuting Time And Off-The-Clock Work Issues

The Ninth Circuit Court of Appeals made a "round trip" on several travel time issues when it recently issued a second opinion regarding whether commute time in company-provided vehicles and some related activities were work time under federal and California law. In Rutti v. Lojack Corporation (9th Cir., No. 07-56599, Mar. 2, 2010), a divided Ninth Circuit panel withdrew its August 21, 2009, opinion. In the original opinion the court of appeals had affirmed the district court's holding that the home-to-work commute by a technician in a company vehicle was not compensable work time under either federal or California law. Reversing course, the divided panel held that, while the commute was not compensable under the federal Employee Commuter Flexibility Act (ECFA),¹ it nevertheless may be compensable under California law. Although this subsequent opinion is less favorable to California employers on the commuting time issue, the opinion continues to provide helpful guidance