Rutti v. Lojack Corp., Inc.

Citation596 F.3d 1046
Decision Date02 March 2010
Docket NumberNo. 07-56599.,07-56599.
PartiesMike RUTTI, Plaintiff-Appellant, and Kevin Vermillion; Isaac Charlesworth; Murray M. Myers; Dan Johnston; Orlando Jason White; Gicardo Leal; Philip Redfield; Jerome Charles Weiss; Nick Kaminsky; Marcus E. McKay; Richard Demelo; Chris Meacham; Eshon D. Mitchell, Plaintiffs, v. LOJACK CORPORATION, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Matthew Righetti and John Glugoski (argued) of the Righetti Law Firm of San Francisco, CA, for the plaintiffs-appellants.

Peter D. Holbrook, Dan Chammas (argued) and Jennifer Fercovich of McDermott Will & Emery LLP of Los Angeles, CA, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. CV-06-00350-DOC.


Opinion by Judge CALLAHAN;1 Separate Opinion by Judge SILVERMAN; Partial Concurrence and Partial Dissent by Judge HALL: Dissent by Judge CALLAHAN.


The petition for panel rehearing is granted in part and denied in part. The Opinion filed August 21, 2009, and appearing at 578 F.3d 1084 (9th Cir.2009), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

The superseding opinion will be filed concurrently with this order.


CALLAHAN, Circuit Judge:

Mike Rutti sought to bring a class action on behalf of all technicians employed by Lojack, Inc. ("Lojack") to install alarms in customers' cars. He sought compensation for the time they spent commuting to worksites in Lojack's vehicles and for time spent on preliminary and postliminary2 activities performed at their homes. The district court granted Lojack summary judgment, holding that Rutti's commute was not compensable as a matter of law and that the preliminary and postliminary activities were not compensable because they either were not integral to Rutti's principal activities or consumed a de minimis amount of time. We affirm the district court's denial of compensation under federal law for Rutti's commute and for his preliminary activities. However, we vacate the district court's grant of summary judgment on Rutti's claim for compensation of his commute under California law and on his postliminary activity of required daily portable data transmissions, and remand the matter to the district court for further proceedings consistent with this opinion.

A. Facts

Rutti was employed by Lojack as one of its over 450 nationwide technicians who install and repair vehicle recovery systems in vehicles. Most, if not all of the installations and repairs are done at the clients' locations. Rutti was employed to install and repair vehicle recovery systems in Orange County, and required to travel to the job sites in a company-owned vehicle. Rutti was paid by Lojack on an hourly basis for the time period beginning when he arrived at his first job location and ending when he completed his final job installation of the day.

In addition to the time spent commuting, Rutti sought compensation for certain "off-the-clock" activities he performed before he left for the first job in the morning and after he returned home following the completion of the last job. Rutti asserted that Lojack required technicians to be "on call" from 8:00 a.m. until 6:00 p.m. Monday through Friday, and from 8:00 a.m. until 5:00 p.m. on Saturdays. During this time, the technicians were required to keep their mobile phones on and answer requests from dispatch to perform additional jobs, but they were permitted to decline the jobs.3 Rutti also alleged that he spent time in the morning receiving assignments for the day, mapping his routes to the assignments, and prioritizing the jobs. This included time spent logging on to a hand-held computer device provided by Lojack that informed him of his jobs for the day.4 In addition, it appears that Rutti may have completed some minimal paperwork at home before he left for his first job.

During the day, Rutti recorded information about the installations he performed on a portable data terminal ("PDT") provided by Lojack. After he returned home in the evening, Rutti was required to upload data about his work to the company. This involved connecting the PDT to a modem, scrolling down a menu on the PDT until he encountered an option labeled "transmit," and selecting this option to initiate the upload process. The transmissions had to be done at home because it required the use of the modem provided by Lojack. Rutti was required to make sure that the transmission was successful, and there is evidence in the record that it often took more than one attempt to successfully complete a transmission. Lojack's Installer Training Manual instructed technicians not to transmit their PDT data ten minutes before or after the hour because the corporate computer system is automatically reset at those times. The Manual further instructed technicians to wait an hour if they have technical difficulties and that after two unsuccessful attempts they should call the host computer and document the date, time, PDT error message, number called from, and any specific error message, dial tone, or busy signal heard over the phone line.

B. Procedural History

On April 5, 2006, Rutti filed this putative class action on behalf of himself and similarly-situated technicians asserting that under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 ("FLSA"), and under California law, Lojack had unlawfully failed to compensate for commuting and "off-the-clock" work. After the parties had engaged in considerable discovery, Lojack moved for partial summary judgment and Rutti sought class certification. The district court decided to rule on the motion for partial summary judgment before addressing class certification, citing Wright v. Schock, 742 F.2d 541, 544 (9th Cir.1984) ("It is reasonable to consider a Rule 56 motion first when early resolution of a motion for summary judgment seems likely to protect both the parties and the court from needless and costly further litigation."). On August 16, 2007, the district court issued its order granting in part and denying in part Lojack's motion for partial summary judgment. The order disposed of all federal claims and denied Lojack's state law claim for compensation for commuting. The district court subsequently issued an order dismissing the remaining state law claims for lack of subject matter jurisdiction. Rutti filed a timely notice of appeal.


Rutti's appeal is from a grant of summary judgment and accordingly, we "must determine, viewing the evidence in the light most favorable to ... the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004). "We may affirm on any ground that is supported by the record." Id.; ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir.2006).


Rutti's appeal raises three major issues: (1) whether Rutti's commute in a Lojack vehicle was compensable under federal or state law; (2) whether Rutti's off-the-clock activities were either not part of his principal activities for Lojack or were de minimis, and thus not compensable; and (3) whether under the "continuous workday" doctrine Rutti's workday started at his home in the morning before he commuted to the first job and extended to his return home.5 We agree with the district court's treatment of all of these issues except as to its grant of summary judgment on Rutti's state cause of action for his commute time and his mandatory off-the-clock PDT transmissions.6

A. Rutti is not entitled to reimbursement under federal law for commuting

Rutti offers two arguments in support of his claim that he is entitled to compensation for commuting in the vehicle provided by Lojack. First, he asserts, based on a United States Department of Labor letter dated April 3, 1995, that he is entitled to compensation because his use of Lojack's vehicle to commute was not voluntary, and amounted to a condition of his employment. Rutti's second argument is that the restrictions Lojack placed on his use of the vehicle rendered the commute compensable. We do not find Rutti's arguments persuasive.

1. Pursuant to the Employment Commuter Flexibility Act, use of an employer's vehicle to commute is not compensable even if it is a condition of employment.

Rutti's first argument is that because he is required to commute in the vehicle provided by Lojack, he did not voluntarily agree to the arrangement and is therefore entitled to compensation. This argument is based on a Department of Labor letter dated April 3, 1995, which states that an employee need not be compensated for the time spent commuting when "driving the employer's vehicle between the employee's home and customers' work sites at the beginning and ending of the workday is strictly voluntary and not a condition of employment." U.S. Dep't Lab. Op. Ltr. (April 3, 1995). Rutti reads this letter as holding that when the use of employer's vehicle to commute is not "strictly voluntary" and is a "condition of employment," then the employee must be compensated for the commute time.

Even assuming that Rutti might have been entitled to compensation for his commute under the April 3, 1995 letter at the time it was written, his claim to compensation does not survive the passage of the Employee Commuter Flexibility Act ("ECFA"), 29 U.S.C. § 254(a)(2). The language of the ECFA and its legislative history compel the conclusion that the requisite "agreement" concerning the use of an employer's vehicle to commute may be part of the employee's employment.

In 1996, Congress amended the Portal-to-Portal Act by enacting the ECFA. The statute...

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