*1 return).” White; text, Leal; Philip “the ... Jason Under Gicardo Red field; Weiss; filing the return” in the fixed for absence Jerome Charles Nick Kaminsky; McKay; filing of an extension of time for the return Marcus E. Rich Demelo; Meacham; capable ard April 15. Even the tax Chris Eshon Mitchell, 1, Plaintiffs, D. January calculation on Franchise authority Tax would have no Board under v. state law to initiate a collection action be- CORPORATION, INC., LOJACK At April ap- fore 15. least one California Defendant-Appellee. supports interpretation pellate case Board, v. Tax No. well. Schatz Franchise 07-56599. Cal.Rptr.2d 719, 69 Cal.App.4th Appeals, States United Court of (1999), Court of Appeal California Ninth Circuit. concluded the date on the Fran- a return accepts Argued chise Tax Board is the Feb. Submitted formally “date when the State act[s] Aug. Filed Thus, finally fix the tax.” to the extent question pertains that the here to the sub-
stance of the tax claim thus to Califor- law,
nia pro- the Franchise Tax Board’s interpretation
posed persuasive. is more Joyes bankruptcy filed for on March
7, 2001; the taxes payable April became
15, 2001, during pendency of the bank-
ruptcy proceeding. reasons, that,
For these I hold would 1305(a)(1), Joyes’
under 11 U.S.C. post-petition. taxes were According-
ly, I affirm would the decision of the dis-
trict court. RUTTI, Plaintiff-Appellant,
Mike Vermillion; Charlesworth;
Kevin Isaac
Murray Myers; M. Johnston; Dan
Orlando. *2 Righetti Glugoski
Matthew and John (argued) Righetti Firm of Law San Francisco, CA, plaintiffs-appellants. for the (ar- Holbrook, Peter D. Dan Chammas gued) and Jennifer Fercovieh of McDer- LLP Emery Angeles, mott Will & of Los CA, defendant-appelleе. with this proceedings further consistent opinion. HALL, I. HOLCOMB
Before: CYNTHIA *3 BARRY SILVERMAN and G. A. Facts CALLAHAN, Circuit M. CONSUELO by Lojack as one of employed Rutti was Judges. 450 nationwide technicians who its over CALLAHAN; Partial by Judge recovery
Opinion repair systems and vehicle install by Judge Partial Dissent Most, Concurrence and in vehicles. if not all of the installa- SILVERMAN at the clients’ repairs tions and are done employed Rutti to install locations. was CALLAHAN, Judge: Circuit recovery systems in repair and vehicle bring a class action sought Mike Rutti County, required and to travel to Orange by employed of all technicians on behalf job company-owned sites in a vehicle. (“Lojack”) in Lojack, Inc. to install alarms paid by Lojack hourly on an Rutti was sought compensation He customers’ cars. period beginning time when basis for the commuting to spent the time job he arrived at his first location and Lojack’s in vehicles and for time worksites completed job he his final ending when ac postliminary1 and spent preliminary on day. installation at their homes. The performed tivities spent In addition to the time commut Lojack summary granted district court ing, sought compensation Rutti for certain that Rutti’s commute judgment, holding he performed “off-the-clock” activities be as a matter of law job morning fore he left for the first preliminary postliminary and that the following after he home returned compensable because activities were not job. Rutti completion of the last asserted integral to Rutti’s they either were not Lojack required technicians to be “on a de min principal activities consumed p.m. Monday call” from a.m. until 6:00 8:00 imis amount of time. We affirm the dis through Friday, and from 8:00 a.m. until compensation trict court’s denial of time, Saturdays. p.m. During 5:00 on this preliminary Rutti’s commute and for his keep the technicians However, were activities. we vacate district phones requests mobile on answer grant summary judgment court’s jobs, dispatch perform from additional activity postliminary transmissions, permitted but to decline the daily portable data and re jobs.2 alleged to the district court for Rutti also that he mand matter Although dictionary, employee's primary job after not in the this word is before or statute, hand, ap- used in the critical 29 U.S.C. On the other the terms functions. 254(a)(2). provides distinguish The statute that an em- pear to be used to off-the-clock ployer pay need not for: activities for which an is not enti- "principal activi- tled preliminary post- activities are to or which an is entitled to ties'' for liminary principal activity to said or activi- ties, compensation. opinion, the terms are prior which occur either time on any particular workday primarily timing at which such em- used to refer to the commences, subsequent ployee to the activities issue. any particular workday at which he time on During years Lojack, ceases, Rutti's six with he principal activity or activities. jobs received two calls for additional while ambiguity inherent in this There is some hand, accepted Rutti one and de- "on-call.” definition. On the one these terms timing either clined the other. refer to the History B. receiving assignments Procedural morning in the day, mapping his routes April putative On Rutti filed this jobs. prioritizing assignments, class action on behalf of himself and simi- to a spent logging included This larly-situated asserting technicians provided computer device hand-held Act, under the Fair Labor Standards jobs him of his Lojack that informed (“FLSA”), §§ 201-19 U.S.C. under addition, it that Rut- day.3 appears law, Lojack unlawfully had California pa minimal completed have some ti compensate for commuting failed for his first at home before left perwork parties “off-the-clock” work. After the job. engaged discovery, had considerable Lo- *4 jack partial summary moved for judgment informa- day, Rutti recorded During sought and Rutti class certification. performed the installations he tion about district court decided to rule on the motion (“PDT”) pro- terminal portable on a data partial summary judgment for before ad- by Lojack. After he returned home vided certification, dressing citing Wright class evening, up- Rutti was in the (9th Schock, Cir.1984) v. company. to the data about his work load (“It is reasonable to consider Rule 56 connecting the PDT to a This involved early motion first when resolution of a modem, the PDT scrolling down a menu on summary judgment motion for seems like- option labeled until he encountered ly protect parties both the and the court “transmit,” selecting option and costly from needless and further litiga- process. The transmis- upload initiate the tion.”). August On the district at home because it had to be done sions granting court issued its order in part and provided required the use of the modem Lojack’s denying part partial motion fоr Lojack. Rutti was to make summary judgment. disposed The order successful, that the transmission was sure Lojack’s of all federal claims and denied in the record that it and there is evidence claim compensation state law for for com- attempt took more than one to suc- often muting. subsequently The district court cessfully complete a transmission. Lo- dismissing remaining issued order jack’s Training Manual instructed Installer subject state law claims for lack of matter not to transmit their PDT data technicians jurisdiction. timely Rutti filed a notice of ten minutes or after the hour be- before appeal. corporate computer system cause automatically reset those times. The II. Manual further instructed technicians to if appeal grant wait an hour have technical difficul- Rutti’s is from a of sum- mary judgment accordingly, that after unsuccessful at- ties and two we “must determine, computer viewing call the host the evidence in tempts should date, time, light non-moving PDT error most to ... and document the favorable from, any spe- party, any genuine whether there are is- message, number called tone, busy sig- of material fact and whether message, cific еrror dial sues the dis- phone correctly applied line. trict court the substan- nal heard over court, tools, taining sought In the district Rutti also com- his work spent washing waiting meetings. pensation for time his work for The district court held clothes, compensation washing maintaining compa- was not entitled to that Rutti Service, car, driving of these activities and Rutti has not ny to the United Parcel purchasing challenged rulings appeal. organizing supplies, and main- those tary, v. State Bd. and amounted to a condition his tive law.” Olsen Idaho of (9th Cix.2004). Medicine, F.3d employment. argument Rutti’s second any ground affirm on “We Lojack placed the restrictions his Id.; supported by record.” ACLU use of the vehicle rendered the commute City Vegas, 466 F.3d Nevada v. Las Third, compensable. Rutti contends that Cir.2006). (9th even if he is not entitled to law, under federal he is entitled to com- III. pensation his commute time under Cal- major Rutti’s raises three issues: appeal ifornia We do find argu- law. (1) Lojack Rutti’s commute in a whether persuasive. ments compensable under federal vehicle was (2) law; state whether Rutti’s off-the-clock Employee Pursuant Commut- either not princi activities were Act, ing Flеxibility use an em- pal Lojack activities or were de minim- ployer’s vehicle to commute is not is, (3) not compensable; and thus it compensable even is a condition workday” whether under “continuous employment. workday doctrine Rutti’s started at his *5 first argument Rutti’s is that be morning home in he the before commuted cause he is to commute in the to the first extended his return by provided Lojack, vehicle he did not agree home.4 with district We court’s agree voluntarily arrangement to the all except treatment of of these issues is compensation. therefore entitled to grant summary judgment to its on Rut- This a argument Department based on mandatory ti’s off-the-clock PDT transmiss 3, 1995, of Labor April letter dated which ions.5 employee
states that an need not be com A. Rutti is not entitled to reimburse- pensated spent commuting commuting
ment for “driving when the employer’s vehicle be employee’s tween the home and customers’ Rutti arguments offers three in support work beginning sites at the and ending of of his claim that he is to compen- entitled workday strictly voluntary a and not sation for provid- the vehicle employment.” condition of Dep’t U.S. First, asserts, by Lojaсk. ed based on 1995). 3, Lab. Op. (April Ltr. Rutti a reads Department United States of Labor let- 3, 1995, holding ter letter as that when the April dated that he is use of entitled to compensation employer’s his use vehicle because of Lo- to commute is not jack’s “strictly voluntary” vehicle commute was not volun- and is “condition of court, sought damage Before the district company Rutti also caused vehicle his compensation for time "on-call.” Rutti failure to maintain the vehicle. California adequately did not brief this court provides employee on this law that an who violates however, referring care, compensa claim duty to on-call his use reasonable skill and pursuant tion a letter filed to Rule diligence employ- liable for losses his 28(j), briefing completed. after This is er negligence as a result sustains of his or preserve insufficient to his claim and we con duty. breach of See Cecka v. Beckman & Indus., sider it See waived. Miller v. Fairchild (1972). Cal.App.3d Cal.Rptr. 28 Inc., (9th Cir.1986); 797 F.2d Fed. The record shows that Rutti admitted that he 29(a)(9). R.App. P. failed Accordingly, to maintain the van. outstanding there is no issue material fact challenges Rutti appeal also prоperly district court district denied Rutti request $500 court's of his denial in reim- $500 reimbursement deductible he expenses repairing paid. bursement for incurred in employer employee and the part must be employee then employment,” representative employee. time. for the commute compensated added). 254(a)(emphasis § 29 U.S.C. might have that Rutti assuming Even language states that where The ECFA’s com- for his entitled been subject to an the use of the vehicle “is letter at the April mute under agreement part employer on the of the written, compensa- claim to time it was employ- it is not of the employee,” passage not survive tion does activities and thus not com- ee’s Flexibility Act Commuting Employee suggestion Id. There is no pensable. 254(a)(2). (“ECFA”), The lan- 29 U.S.C. cannot a condition of agreement legislative its the ECFA and guage of Indeed, it appear would employment. req- conclusion that the history compel an logical place agree- the most to record the use of concerning “agreement” uisite employ- between an and an ment may be to commute employer’s vehicle concerning employer’s the use of an er employee’s employment. part of the employee’s employment in the vehicle is amended the Portal- Congress expect Congress would contract. One by enacting Act ECFA. to-Portal if it did not intend that the statute specify that an need provides statute likely Accordingly, result. we have such following compensate meaning of the statute does plain find the position. activities: See K & N support Bulat, 1079, 1081 Eng’g, Inc. v. (1) riding, traveling walking, (9th Cir.2007) interpretation (“Statutory *6 place performance actual of from the begins plain language with the of the stat- activity which or activities principal the clear, If text of the statute is this ute. perform, employee employed such in determining court looks no further (internal meaning.”) citations statute’s (2) are to or preliminary activities which States, omitted); see also Adams v. United principal activity or to said postliminary (Fed.Cir.2006) (hold- activities, government in vehicle non- ing commute employ- compensable, though condition to the time on prior occur either which ment). workday at which such any particular history commences, legislative A review of the con- subsеquent or employee of the workday plain language at firms the ECFA. any particular the time on ceases, opponents and the sponsors Both the which he requisite recognized that purposes For of this sub- ECFA or activities. employee’s an section, agreement part could be employer’s of an vehicle the use Report The on employment. conditions of by employee an and activities for travel (H.R.1227) the bill stated that are the bill employee an performed agreement, a written require “does not to the use of such vehicle incidental may through requirement be satisfied be considered commuting shall not agreement between the a formal written employee’s principal activities of the employer, a collective bar- travel of such vehicle for the use employ- agreement between gaining area for within normal employer, representatives and ee’s employer’s business or establish- established in- understanding an based on employer’s vehi- and the use ment H.R.Rep. dustry company practices.” subject agreement to an cle is (1996). 104-585, minority those courts that have сonsidered the is- at 4 The No. an objected “permits that the bill sue. report compel agree an employer history legislative The shows Con- vehicle for commut- employer’s to use the gress recognized employers would employ- as a condition of ing purposes, employees’ on their place conditions use ment,” majority that the and commented commuting. Report vehicles for House rejected provided an amendment that had that it possible 585 commented “is not knowing “must be agreement that the in all circumstances what specific define may not be as a
voluntary, and
tasks and activities would be considered
H.R.Rep. No.
employment.”
condition of
employers
‘incidental’
the use of an
at
The author of the bill re-
104-585
H.R.Rep.
vehicle.”
No.
at 5.
104-585
sponded
employ-
some instances
However, it
stated
communications
vehicle could
employer’s
ee’s use of the
be
employer
employee,
between
“routine
“depending on
employment
a condition of
safety inspections
vehicle
or other minor
agreement
between the
tasks,
transportation
sup-
of tools and
еmployee or the terms of
collective bar-
plies,
change
noncompensa-
would not
Cong.
gaining agreement.”
Rec. minority
ble nature of the travel.” Id. The
(1996). Thus,
legislative
the ECFA’s
his-
objected
report
“non-employee pas-
that as
tory
plain language:
confirms its
sengers
uniformly pro-
such vehicles are
“agreement” required by
ECFA
be a
hibited,”
employee may
“effectively
employee’s employment.
condition of the
prohibited
engaging
very
com-
family
mon
necessary
and often
task of
Lojack placed
2. The conditions
dropping off
or her
at
child
school on
Rutti’s use
its vehicle did not
way
to work.”
Id.
13. The failure
compensable.
make his commute
minority report
to stimulate
argument
Rutti’s second
restric-
change
Congress
in the bill indicates that
placed
tions
on his use of the vehicle ren-
object
employers
setting
did
condi-
compensable.
der
the commute
tions on their employees
company
use of
provides
performed
ECFA
that “activities
*7
commuting.
cars for
by an employee which are incidental to the
Those
that
courts
have addressed this
use of
for commuting
such vehicle
shall
question have held that the cost of com
employee’s
not be considered
of the
muting
compensable
is not
unless the em
principal
activities.”
29
U.S.C.
ployees
they “perform
show that
additional
254(a)(2).
argues
§
Rutti
that the restric-
legally cognizable work while
driving
imposed by Lojack
tions
exceed
“inci-
Adams,
workplace.”
their
471 F.3d at
Lojack’s
dental” and make his use of
vehi-
1325; see also Smith v. Aztec Well Servic
an integral part
cle
commute
of his
(10th
ing
462 F.3d
1286-87
Cir.
Lojack.
activities for
Rutti cites
2006)
“[wjhile
(noting that
the Portal-to-
Lojack’s
against using
restrictions
the ve-
clearly
Portal Act
excludes normal home to
personal pursuits
hicle for
transport-
FLSA,
scope
work travel from the
ing passengers,
requirement
that he
Congress
...
...
still
directly
drive
for
intended]
home to work and
home,
employee’s
pro
from work to
activities to fall within the
requirement
and the
that
phone
he have his cell
on.
tection of the
are an inte
[FLSA]
perspective
support
gral part
princi
finds no
in the lan-
of and are essential to the
ECFA,
guage of the
legis- pal
employees”) (quoting
is counter to its
activities of the
history,
Mitchell,
lative
rejected by
and has been
Stеiner v.
(1956)) (internal
unauthorized de-
work and back without
S. Ct.
omitted).
The
stops.
tours or
Id.
Federal Circuit
marks
quotation
254(a),
pursuant
held
U.S.C.
and integral
between incidental
The line
insufficient;
merely
“the
commuting
two cases from the
by
is well-illustrated
legally
plaintiffs
perform
must
additional
States,
In Bobo v. United
Federal Circuit.
to their
cognizable
driving
work while
(Fed.Cir.1998), a group of
workplace
compel compensa-
in order
agent dog
sought
Patrol
handlers
Border
for
Id. at
driving.”
tion
the time
spent transport-
for
plain-
further
1325. The court
held
dogs between their homes
ing their
showing
that their
tiffs “had the burden
Id. at 1466-67.
Patrol offices.
Border
compensable
for
drive time was
work
to use the vehicles
They were
allowed
and of
it
purposes
showing
FLSA
use,
allowed to make
personal
were not
not fall into the set
activities ex-
does
commute,
personal stops during their
were
cluded from the definition of
to wear their official uniforms
required
by
work
the Portal-to-Portal Act as inter-
vehicles,
were
using
while
preted by
precedent.”
our
Id. at 1326.
radios, report
mileage
their
their
monitor
concluded, citing
prior opin-
The court
its
Id.
suspicious
look out
activities.
“[ujnder
Bobo,
ion
the Pоrtal-to-
addition, they
at 1467.
Act,
Portal
time is not
plaintiffs’ driving
stops
dogs
exercise
“to make
compensable.” Id. at 1327.
Nonetheless,
themselves.” Id.
and relieve
even accept-
Circuit held that
the Federal
Here, Lojack placed fewer restrictions
compulsory
the restrictions as
ing
of its
on Rutti’s use
vehicle than were
employer,
their
“the burdens
the benefit of
impor
present Adams
Bobo. More
pass
the de min-
alleged are insufficient
tantly,
has failed
that Lo-
Rutti
to show
at 1468. The court
imis threshold.” Id.
jack’s
to “additional
restrictions amount
main
noted that “the
restric-
specifically
Adams,
work.”
legally cognizable
prohibition
the INS
is the
Agents
tion on
prohibition against
F.3d at
car
during
making personal stops
their
rying
com
non-employee passengers was
commute,”
that “such
restric-
held
practice
mon
before
statute was
government
on their use of a
vehicle
tion
directly
amended in 1996 and not
related
during
does
employ
“principal
activities of the
this time
Id.
compensable.”
make
Well,
ees.” Aztec
porting a claim
Lojack’s
legally cognizable Rutti’s use of
automobile to com
constitute “additional
work,”
job
are no material mute to and from his
sites is more
and because there
analogous
departure
to the “home to
questions of fact as to the restrictions
vehicle,
Lojack’s
points” transportation
affirm
than
Rutti’s use of
we
Morillion
employees’ transportation
district court’s determination that Rut-
on the em
compensation
ployer’s
ti
not entitled to
buses.7
Lojack’s
spends commuting
time
ve-
subsequent
Our review of
constru
cases
hicle.
ing
law fails to
California
reveal
case
extending Morillion to
Rutti’
cover
situa
Rutti has
that he is
show
failed
Co.,
Disney
tion.
v.
Overton Walt
136
compensation
entitled to
under Cal-
Cal.App.4th
Cal.Rptr.3d
38
693
law
his commute in Lo-
ifornia
(2006),
spent by
the court
held
time
jack’s vehicle.
employer-provided
on an
Rutti contends that even his com
employer-provided
shuttle bus from the
ECFA,
compensable
is not
it
mute
under
job
parking
compen
lot to the
site was not
pur
under California law
employees
sable because
were not re
Royal
suant to
v.
Packing
Morillion
quired to use the parking lot or to take the
575,
3,
22
Cal.Rptr.2d
Cal.4th
995 P.2d
shuttle.
In Burnside v. Kiewit Pacific
(2000).
Morillion,
He asserts that in
(9th
Corp.,
Cir.2007),
The “control of the standard ees were entitled to for com set forth in Morillion more muting designated favor- meeting points. law, employees able to than federal it Ghazaryan but The decision in v. Diva Limou Ltd., does not cover Rutti’s commute. Cal.App.4th Mor- sine 87 Cal. illion, employer required (2008), employ- Rptr.3d similarly concerned ees “to meet at the departure points spent by at a limousine drivers between work, calls, certain time to ride its buses to not the spent commuting prohibited using it them from assignments. their own home to their first Further more, cars.” Id. at 94 Cal.Rptr.2d reading our of Morillion is consis P.2d 139. The 510(b), court held that under Cali- with tent California Labor Code law, fornia employees’ “compulsory provides which commut “[t]ime time, travel which includes the time ing place to and from the first spent waiting employer’s] employee’s presence required by [the buses them, begin transporting compensa- shall not be considered to be a ble,” work, but “the time employees] spent day’s of a [the when the *9 commuting owned, from home departure commutes in a vehicle that is issue, Although reading 7. Cal.Rptr.2d this is close our of Cal.4th at 94 995 P.2d by Although Morillion is informed the court’s statement 139. Rutti was to drive vehicle, emphasize employers "we company do not risk he was free to deter- left, route, paying employees merely for their travel time mine when he his and which as- by providing transportation." signment them 22 he drove to first.
1093
by
sought
in that case
overtime com-
leased,
employer
plaintiffs
or subsidized
to
up
for
15 minutes of work
purpose
ridesharing.”8
pensation
is
of
used
of
the start
their shifts.
Id. at
before
we
the dis-
Accordingly,
conclude
that pre-shift
held
activities are
1059. We
Rutti is not
properly held that
trict court
they
“integral
are an
compensable
the time
compensation
to
for
entitled
indispensable part
principal
of the
activi-
in a
job
sites
to and
his
commuting
for which covered workmen are em-
ties
Lojack
29
by
under either
provided
vehicle
(quoting
at 1060
Steiner v.
ployed,” id.
254(a)(2)
§
or California law.
U.S.C.
Mitchell,
247, 256, 76
S.Ct.
(1956)),
that the
that business. We find that
on-call work to the
rather
employer,
the
performed by
8:00 a.m. activities
the
test is focused on the employee and wheth-
helpers
during
electricians
were with-
er he is so restricted
on-call hours
of
range
effectively
in the broad
activi-
as to
“principal
engaged
to wait.” Id.
performed
employer’s
Brigham
ties”
at their
be-
at 354. See
v. Eugene
also
Wa-
Bd.,
(9th
business;
931,
hest and for the benefit of the
ter
Elec.
357
&
F.3d
938
Cir.2004)
they
(applying
were
as
activities
the Owens factors and
employees
vacating grant
summary
which the
ordinari-
judgment
would
paid
employer
ly have been
had such work been
the
because
narrowly
the factors
performed during
workday.
the normal
the employees).
favored
(footnote omitted).9
Id. at 400-401
Thus,
requires
give
Lindow
that we
“рrincipal activities” a liberal construction
169,
In Owens v. Local No.
Ass’n of W.
performed,”
“no matter when the
Workers,
(9th
work
Pulp
Paper
&
971
347
F.2d
F.2d at
(citing
738
1061
29 C.F.R.
Cir.1992),
approached “principal
we
activi
790.8(a)).
The Fifth
opinion
Circuit’s
in
perspective.
ties” from a
different
Ow
Dunlop suggests
pay particular
ens,
we
plaintiffs
were mechanics who
attention to whether
the activities “are
sought overtime compensation for the time
performed
regular
as
work
emergen
were
call to receive
employees
ordinary
in the
course of
cy calls
equipment
employ
to fix
at them
addition,
ti’s
activities
off-the-clock
Lojack
Rutti,
requires that
after he
Rutti’s off-the-clock activities
be di-
job
day
last
completes
goes
place
vided
those that take
between
before
“off-the-clock,” return home and sеnd a
home,
he
preliminary
leaves
i.e. his
activi-
Lojack using
PDT transmission to
a mo
ties,
that
place
and those
take
after he
by Lojack.
dem provided
The transmis
home,
postliminary
returns
i.e. his
activi-
day
be
every
they
sions have to made
ties.
provide Lojack with information concern
jobs
ing
perform
all the
its technicians
Preliminary
a.
Activities
during
day. The
appear
transmissions
morning
Rutti’s
do
activities
not
“part
regular
to
work of the
integral
appear
principal
to be
to his
activ
ordinary
employees
course of busi
“receiving,
ities. Most of his activities—
ness,”
“necessary
and are
to the business
jobs
mapping,
prioritizing
and routes
perfoi-med by
employees,
[are]
for assignment”
related to his com
—are
primarily for the
employer,
benefit
FLSA,
mute.
Under the
ordinary
in the
course of that business.”
presumptively noncompensable, and is Dunlop, 527 F.2d at
Accordingly,
at
clearly
principal
distinct
Rutti’s
activ
on summary
least
judgment,
the district
Lojack.
ities for
Although there are some
court could
not determine that this
indications that Rutti also filled out some
not integral
was
principal
home,
jobs
forms for his
at
it is not clear
activities.
рaperwork
per
could not be
Lojack might still be entitled to sum-
site,
formed after Rutti
job
reached the
mary judgment, if it could be determined
Lojack
required the forms to be filled
postliminary activity
clearly
out
before Rutti reached the
site.
de
minimis.
evidence before the dis-
event,
In any
these preliminary activi-
court, however,
trict
compel
does not
ties,
to the extent that
are both dis-
a conclusion. The fact that several techni-
(which
tinct
from his
commute
not
cians testified that
spent no more
compensable) and related to his principal
than five
night
to ten minutes a
on PDT
activities,
minimis,
appear to be de
might appear
transmissions
give rise
thus, not compensable.
though
Even
a presumption that an activity is de min-
Rutti allegedly filled out certain forms ev-
imis,
Lindow,
see
738 F.2d at
but
ery morning,
nothing
suggest
there is
such a conclusion is
factually
neither
nor
that this took
than a
more
minute or so.
legally compelling.
Thus, viewing the facts in the light most
because,
factually compelling
It is not
Rutti,
favorable to
has
offered
although it may
take
to ten
five
min-
of preliminary
evidence
activities
are
utes to
initiate
send the PDT
integral
trans-
both
to his
аctivities for
mission,
Lojack
the record shows that the employ-
more
a
take
than
de minimis
ee
amount
come back and
Accordingly,
of time.
check
the district
successful,
properly
Lojack
court
see that the
granted
summary
transmission was
judgment
not,
compensa-
Rutti’s claim for
and if
it again.
send
There is also
preliminary
tion for
activities.
evidence
the record that there are fre-
estimates,
duty
accurate
it
productive
is the
of the trier
these activities in excess of the
facts
draw whatever reasonable infer-
working time.
employees’
ences can be drawn from the
S.Ct. 1187.
spent
evidence as
amount
day
spent
to cover the time
Accordingly, minutes
failures.
transmission
quent
sum,
compel
finding
PDT transmissions.
inherent
does
the record
the record of
daily
difficulty
recording
transmission
actual
ten minutes.
than
jobs takes less
day’s
on a
PDT
particular
transmission
*13
necessarily
not
bar a determination
does
Furthermore,
a ten
adopted
we
not
have
not de
are
the PDT transmissions
that
Al
minute de minimis
rule.
fifteen
Inc.,
Monfort,
Reich v.
minimis. See
Lindoiv,
“most
that
though
noted
we
(10th Cir.1998)
1329,
(holding
F.3d
approxi
of
daily periods
courts have found
the
it took
to don
packers
that
time
meat
minimis
mately 10 minutes de
even
employer-mandated
shed
cloth-
went
compensable,” we
though otherwise
was not de minimis even
though
“the
precise
ing
is no
to hold that “[t]here
on
difficulty
com
of
re-
supervising
that
be denied
practical
amount of time
de minimis”
weighs
“[n]o
pensation
cording
as
the additional time
in favor
applied
rule can be
with mathemati
rigid
finding noncompensable”).
it
at
The
certainty.” 738 F.2d
cal
prongs,
aggregate
The other two
“the
three-prong
a
went on to set forth
panel
time,”
amount of
and “the
standard,
have been unneces
which would
work,” Lindow,
of the
regularity
additional
a
adopt
intended to
sary
panel
if the
had
1063,
F.2d
favor Rutti. Rutti as-
at
minute rule.12
ten or fifteen
take
serts
the transmissions
about 15
test
three-prong
of this
application
The
minutes a
day. This is over
hour a
compel
a
the
in this case do
facts
many employees,
sig-
For
this is a
week.
are
that the PDT transmissions
conclusion
money. Also,
nificant
of time and
amount
prong,
prac-
The
“the
de minimis.
first
must made at the end
the transmissions
be
difficulty
recording
tical administrative
every
day,
appear
work
to be a
time,”
1063,
id. at
closely
the additional
requirement
employment.
of a technician’s
Certainly, it
in this case.
is diffi-
balanced
suggests that
“are
This
the transmission
exactly how much time
cult to determine
performed
part
regular
of the
work
daily on
PDT
spends
technician
the
each
ordinary
employees in the
course of
It is
what
transmissions.
also
clear
business,”
Dunlop, 527 F.2d
at
be covered.
Is the
activities should
ap-
the amount of time
accordingly, unless
back to check
when the technician comes
Supreme
Court termed
proaches what
transmission was successful
to see
absurdities,” the technician
“split-second
waiting
a
included? When
technician is
Anderson,
See
compensated.
be
should
hour,
is he
until ten minutes after
at
While the
That
is correct that Lin-
ad-
dow did not
that
per
only
establish
se
mitted
the
rule
ten
transmission
took him
minimis,
or
majori-
minutes
less is de
the
one to two
daily,
minutes
but that LoJack
ty
the
overlooks
facts of that case.
paid
increments,
in fifteen minute
so
majority
heavily
1. The
cites
from
majority
which the
now relies. See Carter v.
opinion
support
policy
Anderson
its
discus-
1289,
Panama Canal
463 F.2d
1293-94
compensable
interpreta-
sion of
time and its
(D.C.Cir.1972). It
Portal-to-Portal Act
scope
tion
of the de
rule.
minimis
See
excludes
Opinion
separately object
at n. 10 & 11. I
preliminary
postliminary
activities.
Congress
this
reliance.
overruled
id.;
Thus,
See
see also 29 U.S.C. 254.
by passing
Anderson decision
the Portal-to-
reliance on the Anderson case should be re-
Act,
FLSA,
Portal
which modified the
less
stricted to its
de
creation of the minimis ex-
year
than one
after the decision was reached
ception.
very
in order
reasoning
to vitiate
class
majority
purported
members
The
also admit- vast
up.
technician
he rounded
testified,
policy required
transmission would like-
company
knew
the total
ted that he
day
him
at 5
from work each
to clock out
ly require under five minutes.
Forres-
he re-
the fifteen minutes
Foodliner,
whereas
p.m.,
v. Roth’s
ter
IGA
The
does
p.m.
after 5
record
(9th
corded
Cir.1981),
court held that
this
or even
approved,
that LoJack
not indicate
knowledge
no
“where
has
of,
practice.
this technician’s
was aware
in overtime work
engaging
supporting the
rather than
example,
This
notify
the em-
and that
fails
conclusion,
the diffi-
highlights
majority’s
deliberately
the em-
ployer
prevents
peri-
such small
culty
recording
involved
knowledge
acquiring
ployer
of time.
ods
work,
failure to
employer’s
overtime
to note that
viola-
majority
is correct
for the overtime hours is
pay
see
also check back to
must
deliberate ac-
technicians
[the FLSA].”
tion
successfully,
uploaded
was
data
violating company procedure
tions
to do.
only a few seconds
requires
but
prob-
have notified
would
LoJack
that he
deposition
at his
Rutti
testified
or, in the case of the
experienced,
lems he
the time when
data
spend
would
transmission,
pre-
automatic
would have
making
watching
transmitting
television
difficulties,
cannot now held
vented
be
PDT
set-up
And if he
a sandwich.
against LoJack.
automatically
occur
over
transmission
Thus,
if the transmission is con-
even
allowed, the transmission
as
night,
LoJack
principal activity,
it is
strued
be a
still
hardly
spent sleеping.
could be
This
de
compensable
because it is minimis.
“engaged to wait” standard
satisfies the
not de
And even if the transmission were
v.
Owens
minimis,
is still entitled to sum-
LoJack
Pulp
Paper
No.
Ass’n
&
Local
of W.
mary judgment
if Rutti failed
inform
(9th Cir.1992).
Workers,
F.2d
of the time
the trans-
LoJack
the PDT trans-
Finally,
argues,
as Rutti
I
a de minimis time.
beyond
missions
couple min-
longer than a
mission took
precisely
type
*17
this is
of
conclude that
required
only
the transmission
utes
when
Act
Portal-to-Portal
and the
the
Even
multiple attempts to be successful.
designed
rule were
to reach.
de minimis
multiple
of
allowing
possibility
portion
that
of
respectfully
I
dissent from
attempts,
attempt
new
transmission
each
otherwise.
opinion
the
which concludes
to
only a few seconds of time
would add
again,
employees’
and the
click “transmit”
SILVERMAN,
Judge,
Circuit
attempts
transmission
time between
concurring
dissenting
part:
during
uploading
would be
actual
requires
employees
that
California law
above,
activities. As noted
how-
personal
all
compensated
“during
which
be
ever,
procedures
established
LoJack
subject
the control of an
to
they experienced
follow if
technicians to
Royal Packing
Morillion v.
еmployer.”
difficulties,
to
required them
technical
94 Cal.Rptr.2d
Cal.4th
Rutti
he
report any such failures.
admits
(2000).
Morillion,
P.2d
procedure
notify
to
LoJack
never followed
held
Supreme Court
California
difficulties,
his
up
his
nor did he set
“subject
to the control”
plaintiffs were
automatically.
to occur
PDT transmission
mandatory
during a
bus
required
employees
per-
its
to
LoJack
drop
“plaintiffs could not
commute because
to be de
form a transmission it believed
school, stop
for break-
their children
properly performed,
If
off
minimis.
work,
required
fast before
or run other errands
in the affirmative. Rutti was
car.” Id. at
requiring
use
94 only
Lojack
job
to drive
vehicle to
Cal.Rptr.2d
139. The
995 P.2d
Califor-
site,
attending
but was forbidden from
to
Supreme
nia
Court
reasoned
any personal
way.
along
business
Be
“[p]laintiffs were foreclosed from numer-
obviously
employ
cause he
under the
was
they might
in which
ous activities
other-
was,
in these
er’s control
circumstances
engage
permitted
wise
law,
paid.1
under California
entitled
transpor-
travel to the fields
their own
majority
The
makes
mistake
as-
precisely
tation.” Id. That is
the situation
suming that any employer-mandated travel
here. Rutti was
to drive
required
vehicle,
begins
automatically
at home is
non-
company
stop
could not
off for
errands,
compensable,
assumption
personal
passen-
again
could not take
but
gers,
ignores
to drive the vehicle
controlling legal principle.
It
back,
directly
job
from home
his
employer’s
is the “level of the
control over
phone
use his
and could not
cell
while
determinative,”
employees”
its
that “is
driving except
keep
that he
had
just
the employee
happens
whether
so
phone on to
compa-
answer calls from the
depart
from his home
instead
some
ny dispatcher. There
no
simply
denying
587, Cal.Rptr.2d
other location. Id. at
Lojack’s
that Rutti was under
control 3,
Here,
vant under California “subject whether Rutti was to the con-
trol of an employer” during his mandatory
travel A straightforward application time. *18 easily
of Morillion
that question
answers
(9th
majority
Corp.,
Cir.2007),
The additional cases
cited