FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIKE RUTTI, 

Plaintiff-Appellant,

and

KEVIN VERMILLION; ISAAC

CHARLESWORTH; MURRAY M.

M No. 07-56599 YERS; DAN JOHNSTON; ORLANDO

JASON WHITE; GICARDO LEAL; D.C. No.

PHILIP REDFIELD; JEROME CHARLES  CV-06-00350-DOC

WEISS; NICK KAMINSKY; MARCUS E. ORDER AND

MCKAY; RICHARD DEMELO; CHRIS OPINION

MEACHAM; ESHON D. MITCHELL,

Plaintiffs,

v.

LOJACK CORPORATION, INC.,

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

February 4, 2009—Pasadena, California

Filed March 2, 2010

Before: Cynthia Holcomb Hall, Barry G. Silverman and

Consuelo M. Callahan, Circuit Judges.

3231
Opinion by Judge Callahan;1

Separate Opinion by Judge Silverman;

Partial Concurrence and Partial Dissent by Judge Hall;

Dissent by Judge Callahan

1

Judge Silverman joins in this opinion and Judge Hall joins in this opinion except as to Rutti’s claim for compensation for the required postliminary PDT transmissions. Judge Silverman has authored a separate opinion

concerning Rutti’s claim for compensation under California law for commuting, which Judge Hall joins, and to which Judge Callahan has filed a

dissent. 

3232 RUTTI v. LOJACK CORP.
COUNSEL

Matthew Righetti and John Glugoski (argued) of the Righetti

Law Firm of San Francisco, California, for the plaintiffsappellants. 

Peter D. Holbrook, Dan Chammas (argued) and Jennifer Fercovich of McDermott Will & Emery LLP of Los Angeles,

California, for the defendant-appellee.

ORDER

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appearing at 578 F.3d 1084 (9th Cir. 2009), is withdrawn.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. 

OPINION

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

2Although not in the dictionary, this word is used in the critical statute,

29 U.S.C. § 254(a)(2). The statute provides that an employer need not pay

for: 

activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on

3236 RUTTI v. LOJACK CORP.
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.

I.

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.

any particular workday at which such employee commences, or

subsequent to the time on any particular workday at which he

ceases, such principal activity or activities. 

There is some inherent ambiguity in this definition. On the one hand, these

terms refer to the timing of the activity as either before or after the

employee’s primary job functions. On the other hand, the terms appear to

be used to distinguish off-the-clock activities for which an employee is not

entitled to compensation from “principal activities” for which an

employee is entitled to compensation. In this opinion, the terms are used

primarily to refer to the timing of the activities in issue. 

RUTTI v. LOJACK CORP. 3237
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 handheld 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

3During Rutti’s six years with Lojack, he only received two calls for

additional jobs while “on-call.” Rutti accepted one job and declined the

other. 

4

In the district court, Rutti also sought compensation for time spent

washing his work clothes, washing and maintaining the company car, driving to the United Parcel Service, organizing supplies, purchasing and

maintaining his work tools, and commuting to and waiting for meetings.

The district court held that Rutti was not entitled to compensation for any

of these activities and Rutti has not challenged those rulings on appeal. 

3238 RUTTI v. LOJACK CORP.
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.

II.

Rutti’s appeal is from a grant of summary judgment and

accordingly, we “must determine, viewing the evidence in the

RUTTI v. LOJACK CORP. 3239
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).

III.

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

5Before the district court, Rutti also sought compensation for time spent

“on-call.” Rutti did not adequately brief this court on this claim however,

referring to on-call compensation only in a letter filed pursuant to Rule

28(j), after briefing was completed. This is insufficient to preserve his

claim and we consider it waived. See Miller v. Fairchild Indus., Inc., 797

F.2d 727, 738 (9th Cir. 1986); Fed. R. App. P. 29(a)(9). 

6Rutti also challenges on appeal the district court’s denial of his request

for $500 in reimbursement for expenses incurred in repairing damage to

the company vehicle caused by his failure to maintain the vehicle. California law provides that an employee who violates his duty to use reasonable

care, skill and diligence is liable for losses which his employer sustains as

a result of his negligence or breach of duty. See Cecka v. Beckman & Co.,

28 Cal. App. 3d 5, 11 (1972). The record shows that Rutti admitted that

he failed to maintain the van. Accordingly, there is no outstanding issue

of material fact and the district court properly denied Rutti reimbursement

for the $500 deductible he paid. 

3240 RUTTI v. LOJACK CORP.
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

RUTTI v. LOJACK CORP. 3241
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 provides that an employer

need not compensate an employee for the following activities:

(1) walking, riding, or traveling to and from the

actual place of performance of the principal activity

or activities which such employee is employed to

perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular

workday at which such employee commences, or

subsequent to the time on any particular workday at

which he ceases, such principal activity or activities.

For purposes of this subsection, the use of an

employer’s vehicle for travel by an employee and

activities performed by an employee which are incidental to the use of such vehicle for commuting shall

not be considered part of the employee’s principal

activities if the use of such vehicle for travel is

within the normal commuting area for the employer’s business or establishment and the use of the

employer’s vehicle is subject to an agreement on the

part of the employer and the employee or representative of such employee.

29 U.S.C. § 254(a)(emphasis added). 

[1] The ECFA’s language states that where the use of the

vehicle “is subject to an agreement on the part of the

employer and the employee,” it is not part of the employee’s

principal activities and thus not compensable. Id. There is no

3242 RUTTI v. LOJACK CORP.
suggestion that the agreement cannot be a condition of

employment. Indeed, it would appear that the most logical

place to record an agreement between an employee and an

employer concerning the use of an employer’s vehicle is in

the employee’s employment contract. One would expect Congress to specify if it did not intend that the statute have such

a likely result. Accordingly, we find the plain meaning of the

statute does not support Rutti’s position. See K & N Eng’g,

Inc. v. Bulat, 510 F.3d 1079, 1081 (9th Cir. 2007) (“Statutory

interpretation begins with the plain language of the statute. If

the text of the statute is clear, this court looks no further in

determining the statute’s meaning.”) (internal citations omitted); see also Adams v. United States, 471 F.3d 1321, 1323

(Fed. Cir. 2006) (holding commute in government vehicle

non-compensable, though condition of employment).

[2] A review of the legislative history confirms the plain

language of the ECFA. Both the sponsors and the opponents

of ECFA recognized that the requisite agreement could be

part of an employee’s conditions of employment. The Report

on the bill (H.R. 1227) stated that the bill “does not require

a written agreement, this requirement may be satisfied

through a formal written agreement between the employee

and employer, a collective bargaining agreement between the

employee’s representatives and the employer, or an understanding based on established industry or company practices.”

H. R. Rep. No. 104-585, at 4 (1996). The minority report

objected that the bill “permits an employer to compel an

employee to agree to use the employer’s vehicle for commuting purposes, as a condition of employment,” and commented

that the majority had rejected an amendment that provided

that the agreement “must be knowing and voluntary, and may

not be required as a condition of employment.” H. R. Rep.

No. 104-585 at 8. The author of the bill responded that in

some instances an employee’s use of the employer’s vehicle

could be a condition of employment “depending on the agreement between the employer and employee or the terms of a

collective bargaining agreement.” 142 CONG. REC. 12234

RUTTI v. LOJACK CORP. 3243
(1996). Thus, the ECFA’s legislative history confirms its

plain language: the “agreement” required by ECFA may be a

condition of the employee’s employment.

2. The conditions Lojack placed on Rutti’s use of its vehicle did not make his commute compensable.

[3] Rutti’s second argument is that restrictions placed on

his use of the vehicle render the commute compensable. The

ECFA provides that “activities performed by an employee

which are incidental to the use of such vehicle for commuting

shall not be considered part of the employee’s principal activities.” 29 U.S.C. § 254(a)(2). Rutti argues that the restrictions

imposed by Lojack exceed the “incidental” and make his use

of Lojack’s vehicle to commute an integral part of his principal activities for Lojack. Rutti cites Lojack’s restrictions

against using the vehicle for personal pursuits and transporting passengers, the requirement that he drive directly from

home to work and from work to home, and the requirement

that he have his cell phone on. Rutti’s perspective finds no

support in the language of the ECFA, is counter to its legislative history, and has been rejected by those courts that have

considered the issue.

[4] The legislative history shows that Congress recognized

that employers would place conditions on their employees’

use of vehicles for commuting. House Report 585 commented

that it “is not possible to define in all circumstances what specific tasks and activities would be considered ‘incidental’ to

the use of an employers vehicle.” H. R. Rep. No. 104-585 at

5. However, it stated that communications between employer

and employee, “routine vehicle safety inspections or other

minor tasks, and transportation of tools and supplies, would

not change the noncompensable nature of the travel.” Id. The

minority report objected that as “non-employee passengers in

such vehicles are uniformly prohibited,” an employee may be

“effectively prohibited from engaging in the very common

and often necessary family task of dropping off his or her

3244 RUTTI v. LOJACK CORP.
child at school on the way to work.” Id. at 13. The failure of

the minority report to stimulate any change in the bill indicates that Congress did not object to employers setting conditions on their employees use of company cars for commuting.

[5] Those courts that have addressed this question have

held that the cost of commuting is not compensable unless the

employees show that they “perform additional legally cognizable work while driving to their workplace.” Adams, 471

F.3d at 1325; see also Smith v. Aztec Well Servicing Co., 462

F.3d 1274, 1286-87 (10th Cir. 2006) (noting that “[w]hile the

Portal-to-Portal Act clearly excludes normal home to work

travel from the scope of the FLSA, . . . Congress . . . still

intend[ed] for an employee’s activities to fall within the protection of the [FLSA] if they are an integral part of and are

essential to the principal activities of the employees”) (quoting Steiner v. Mitchell, 350 U.S. 247, 254 (1956)) (internal

quotation marks omitted).

The line between incidental and integral is well-illustrated

by two cases from the Federal Circuit. In Bobo v. United

States, 136 F.3d 1465 (Fed Cir. 1998), a group of Border

Patrol agent dog handlers sought compensation for the time

spent transporting their dogs between their homes and Border

Patrol offices. Id. at 1466-67. They were not allowed to use

the vehicles for personal use, were not allowed to make personal stops during their commute, were required to wear their

official uniforms while using the vehicles, were required to

monitor their radios, report their mileage and look out for

suspicious activities. Id. at 1467. In addition, they were

required “to make stops for the dogs to exercise and relieve

themselves.” Id. Nonetheless, the Federal Circuit held that

even accepting the restrictions as compulsory and for the benefit of their employer, “the burdens alleged are insufficient to

pass the de minimis threshold.” Id. at 1468. The court specifically noted that “the main restriction on the INS Agents is the

prohibition on making personal stops during their commute,”

and held that “such a restriction on their use of a government

RUTTI v. LOJACK CORP. 3245
vehicle during their commuting time does not make this time

compensable.” Id.

Adams v. United States, 471 F.3d 1321 (Fed. Cir. 2007),

also concerned a suit by government law enforcement agents

seeking compensation for their commute from home to work

in government-owned vehicles. Id. at 1323. They argued that

they had to be available for emergency calls, had to have their

weapons with them, had to monitor their communication

equipment, could not run any personal errands, and had to

proceed directly from home to work and back without unauthorized detours or stops. Id. The Federal Circuit held that

pursuant to 29 U.S.C. § 254(a), merely commuting was insufficient; “the plaintiffs must perform additional legally cognizable work while driving to their workplace in order to

compel compensation for the time spent driving.” Id. at 1325.

The court further held that plaintiffs “had the burden of showing that their drive time was compensable work for FLSA

purposes and of showing that it does not fall into the set of

activities excluded from the definition of compensable work

by the Portal-to-Portal Act as interpreted by our precedent.”

Id. at 1326. The court concluded, citing its prior opinion in

Bobo, that “[u]nder the Portal-to-Portal Act, plaintiffs’ driving

time is not compensable.” Id. at 1327.

[6] Here, Lojack placed fewer restrictions on Rutti’s use of

its vehicle than were present in Adams and Bobo. More

importantly, Rutti has failed to show that Lojack’s restrictions

amount to “additional legally cognizable work.” Adams, 471

F.3d at 1325. The prohibition against carrying non-employee

passengers was common practice before the statute was

amended in 1996 and is not directly related to the “principal

activities of the employees.” Aztec Well, 462 F.3d at 1287. In

Bobo, the Federal Circuit specifically stated that the restriction on making personal stops did not make the commute time

compensable. Bobo, 136 F.3d at 1468. Moreover, this restriction is not directly related to Rutti’s principal activities for

Lojack. In addition, although the police officers in both Bobo

3246 RUTTI v. LOJACK CORP.
and Adams were required to monitor their communications

equipment, in neither case was this considered sufficient to

compel compensation.7 In light of Rutti’s failure to cite any

authority supporting a claim that Lojack’s restrictions constitute “additional legally cognizable work,” and because there

are no material questions of fact as to the restrictions on

Rutti’s use of Lojack’s vehicle, we affirm the district court’s

determination that Rutti is not entitled under federal law to

compensation for the time he spends commuting in Lojack’s

vehicle.

B. One of Rutti’s off-the-clock activities may be 

compensable

[7] Rutti also seeks compensation for activities that he

engaged in for Lojack before he travels to his first job site and

after he returns home from his last job site of the day. The

ECFA, however, in addition to exempting commute time from

compensation, also provides that an employer need not compensate an employee for “activities which are preliminary to

or postliminary to said principal activity or activities.” 29

U.S.C. § 254(a)(2). Thus, to be entitled to compensation for

his off-the-clock activities, Rutti must show that they are

related to his “principal activities” for Lojack. In addition, our

case law indicates that activity that might otherwise be compensable is not if the time involved is de minimis. Accordingly, we next discuss the applicable case law, first addressing

the definitions of “principal activities” and “de minimis” for

off-the-clock activities. We then apply those definitions to

Rutti’s preliminary and postliminary activities.

7Although the Federal Circuit in Adams and Bobo concluded that the

restrictions there at issue did not pass the de minimis threshold (Adams,

471 F.3d at 1327; Bobo, 136 F.3d at 1468), as a practical matter, this is

the same as determining that the restrictions did not amount to “additional

legally cognizable work.” 

RUTTI v. LOJACK CORP. 3247
1. Applicable Case Law

a. The definition of “principal activities”

[8] We first considered the definition of “principal activities” in Lindow v. United States, 738 F.2d 1057 (9th Cir.

1984). The plaintiffs in that case sought overtime compensation for up to 15 minutes of work before the start of their

shifts. Id. at 1059. We held that pre-shift activities are compensable if they are an “integral and indispensable part of the

principal activities for which covered workmen are

employed,” id. at 1060 (quoting Steiner v. Mitchell, 350 U.S.

247, 256 (1956)), and that the term “principal activities” is to

be liberally construed “to include any work of consequence

performed for an employer no matter when the work is performed.” Id. at 1061 (citing 29 C.F.R. § 790.8(a)). 

The Fifth Circuit adopted a similar broad definition of principal activities in Dunlop v. City Elec., Inc., 527 F.2d 394 (5th

Cir. 1976). In Dunlop, electricians arrived at the work site

approximately 15 minutes before the work day began at 8:00

a.m. to perform certain duties. Id. at 397. The issue was

whether these activities were integral to their principal activities. The Fifth Circuit adopted a broad definition, holding

that:

The test, therefore, to determine which activities are

“principal” and which are “an integral and indispensable part” of such activities, is not whether the activities in question are uniquely related to the

predominant activity of the business, but whether

they are performed as part of the regular work of the

employees in the ordinary course of business. It is

thus irrelevant whether fueling and unloading trucks

is “directly related” to the business of electrical wiring; what is important is that such work is necessary

to the business and is performed by the employees,

primarily for the benefit of the employer, in the ordi3248 RUTTI v. LOJACK CORP.
nary course of that business. We find that the pre8:00 a.m. activities performed by the electricians and

their helpers were within the broad range of “principal activities” performed at their employer’s behest

and for the benefit of the business; as such they were

compensable activities for which the employees

would ordinarily have been paid had such work been

performed during the normal workday.

Id. at 400-401 (footnote omitted).8

In Owens v. Local No. 169, Ass’n of W. Pulp & Paper

Workers, 971 F.2d 347 (9th Cir. 1992), we approached “principal activities” from a different perspective. In Owens, the

plaintiffs were mechanics who sought overtime compensation

for the time that they were on call to receive emergency calls

to fix equipment at their employer’s pulp mill. Id. at 348-49.

We observed that the Supreme Court had held that time spent

waiting for work is compensable if the waiting time is spent

“primarily for the benefit of the employer and his business.”

Id. at 350 (quoting Armour & Co. v. Wantock, 323 U.S. 126,

132 (1944)). We noted that “facts may show that the

employee was ‘engaged to wait,’ which is compensable, or

they may show that the employee ‘waited to be engaged,’

which is not compensable.” Id. at 350 (quoting Skidmore v.

Swift & Co., 323 U.S. 134, 137 (1944). We nonetheless

rejected the plaintiffs’ claims, holding that the proper test “is

not the importance of on-call work to the employer, rather the

test is focused on the employee and whether he is so restricted

during on-call hours as to be effectively engaged to wait.” Id.

at 354. See also Brigham v. Eugene Water & Elec. Bd., 357

F.3d 931, 938 (9th Cir. 2004) (applying the Owens factors and

vacating a grant of summary judgment for the employer

because the factors narrowly favored the employees).

8The Fifth Circuit, however, remanded the case “for further determination whether all these activities combined still resulted in so slight an

expenditure of the employees’ time as to be de minimis and therefore not

compensable.” Id. at 401. 

RUTTI v. LOJACK CORP. 3249
Thus, Lindow requires that we give “principal activities” a

liberal construction “no matter when the work is performed,”

738 F.2d at 1061 (citing 29 C.F.R. § 790.8(a)). The Fifth Circuit’s opinion in Dunlop suggests that we pay particular attention to whether the activities “are performed as part of the

regular work of the employees in the ordinary course of business.” 527 F.2d at 401. In addition, Owens counsels that we

consider the extent to which the work impacts the employee’s

freedom to engage in other activities. 971 F.2d at 354.

b. The definition of de minimis

[9] Our opinion in Lindow also applied the de minimis rule

to claims of overtime compensation. 738 F.2d at 1062. Taking

our lead from the Supreme Court’s opinion in Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 692 (1946), we recognized that an employer’s obligation to pay for the employees’

efforts had to be moderated by a de minimis rule.9 We cited

the Supreme Court’s statement that:

When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Splitsecond absurdities are not justified by the actualities

of working conditions or by the policy of the Fair

Labor Standards Act. It is only when an employee is

required to give up a substantial measure of his time

9

In Anderson, the Supreme Court first noted that “the time spent in

walking to work on the employer’s premises, after the time clocks were

punched, involved physical or mental exertion (whether burdensome or

not) controlled or required by the employer and pursued necessarily and

primarily for the benefit of the employer and his business.” 328 U.S. at

691-92. It then commented that “compensable working time was limited

to the minimum time necessarily spent in walking at an ordinary rate along

the most direct route from time clock to work bench. Many employees

took roundabout journeys and stopped off en route for purely personal reasons. It would be unfair and impractical to compensate them for doing that

which they were not required to do.” Id. at 692. 

3250 RUTTI v. LOJACK CORP.
and effort that compensable working time is

involved.

Lindow, 738 F.2d at 1062 (quoting Anderson, 328 U.S. at

692).

In Lindow, we concluded that even though some of the

employees’ activities were principal activities, the district

court properly determined that “the 7 to 8 minutes spent by

employees reading the log book and exchanging information,

even if not preliminary, was de minimis and therefore not

compensable.” Id. at 1062.

The panel carefully explained its reasoning. An important

factor in determining whether a claim is de minimis is the

amount of time spent on the additional work. The panel specifically stated that: “[t]here is no precise amount of time that

may be denied compensation as de minimis. No rigid rule can

be applied with mathematical certainty.” Id. at 1062. Nonetheless, the panel noted that most courts “have found daily

periods of approximately 10 minutes de minimis even though

otherwise compensable.” Id. The panel then qualified this

statement, explaining: “[t]he de minimis rule is concerned

with the practical administrative difficulty of recording small

amounts of time for payroll purposes.” Id. Accordingly,

employers “must compensate employees for even small

amounts of daily time unless that time is so minuscule that it

cannot, as an administrative matter, be recorded for payroll

purposes.” Id. at 1062-63. Furthermore, courts may consider

“the size of the aggregate claim,” and “have granted relief for

claims that might have been minimal on a daily basis but,

when aggregated, amounted to a substantial claim.” Id. at

1063. Also, courts apply “the de minimis rule in relation to the

total sum or claim involved in the litigation.” Id. “Finally, in

applying the de minimis rule, we will consider whether the

claimants performed the work on a regular basis.” Id. The

court summarized its position as follows:

RUTTI v. LOJACK CORP. 3251
in determining whether otherwise compensable time

is de minimis, we will consider (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.

Id. at 1063.

Thus, in determining whether an otherwise compensable

activity is de minimis, we apply the three-prong test set forth

in Lindow. In doing so, we recognize that the test reflects a

balance between requiring an employer to pay for activities it

requires of its employees and the need to avoid “split-second

absurdities” that “are not justified by the actuality of the

working conditions.” Lindow, 738 F.2d at 1062 (quoting

Anderson, 328 U.S. at 692).10

2. Applying the applicable law to Rutti’s off-the clock

activities

Rutti’s off-the-clock activities may be divided between

those that take place before he leaves home, i.e. his preliminary activities, and those that take place after he returns home,

i.e. his postliminary activities.

10In Anderson, the Supreme Court indicated that an employee was entitled to compensation for principal activities unless the employer met its

burden of showing that the time consumed by the activity was truly de

minimis. 

The master . . . denied recovery solely because the amount of

time taken up by the activities and the proportion of it spent in

advance of the established starting time had not been proved by

the employees with any degree of reliability or accuracy. But, as

previously noted, the employees cannot be barred from their statutory rights on such a basis. Unless the employer can provide

accurate estimates, it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the employees’

evidence as to the amount of time spent in these activities in

excess of the productive working time. 

328 U.S. at 693. 

3252 RUTTI v. LOJACK CORP.
a. Preliminary Activities

[10] Rutti’s morning activities do not appear to be integral

to his principal activities. Most of his activities — “receiving,

mapping, and prioritizing jobs and routes for assignment” —

are related to his commute. Under the FLSA, commuting is

presumptively noncompensable, and is clearly distinct from

Rutti’s principal activities for Lojack. Although there are

some indications that Rutti also filled out some forms for his

jobs at home, it is not clear that the paperwork could not be

performed after Rutti reached the job site, or that Lojack

required the forms to be filled out before Rutti reached the job

site.

[11] In any event, these preliminary activities, to the extent

that they are both distinct from his commute (which is not

compensable) and related to his principal activities, appear to

be de minimis, and thus, not compensable. Even though Rutti

allegedly filled out certain forms every morning, there is nothing to suggest that this took more than a minute or so. Thus,

viewing the facts in the light most favorable to Rutti, he has

not offered any evidence of preliminary activities that are

both integral to his principal activities for Lojack and take

more than a de minimis amount of time. Accordingly, the district court properly granted Lojack summary judgment on

Rutti’s claim for compensation for preliminary activities.

b. Postliminary Activities

[12] Lojack requires that Rutti, after he completes his last

job for the day and goes “off-the-clock,” return home and

send a PDT transmission to Lojack using a modem provided

by Lojack. The transmissions have to be made every day as

they provide Lojack with information concerning all the jobs

its technicians perform during the day. The transmissions

appear to be “part of the regular work of the employees in the

ordinary course of business,” and are “necessary to the business and [are] performed by the employees, primarily for the

RUTTI v. LOJACK CORP. 3253
benefit of the employer, in the ordinary course of that business.” Dunlop, 527 F.2d at 401. Accordingly, at least on summary judgment, the district court could not determine that this

activity was not integral to the Rutti’s principal activities.

[13] Lojack might still be entitled to summary judgment,

if it could be determined that this postliminary activity was

clearly de minimis. The evidence before the district court,

however, does not compel such a conclusion. The fact that

several technicians testified that they spent no more than five

to ten minutes a night on PDT transmissions might appear to

give rise to a presumption that an activity is de minimis, see

Lindow, 738 F.2d at 1062, but such a conclusion is neither

factually nor legally compelling. 

It is not factually compelling because, although it may take

only five to ten minutes to initiate and send the PDT transmission, the record shows that the employee is required to come

back and check to see that the transmission was successful,

and if not, send it again. There is also evidence in the record

that there are frequent transmission failures. Accordingly, the

record does not compel a finding that the daily transmission

of the record of the day’s jobs takes less than ten minutes.

Furthermore, we have not adopted a ten or fifteen minute

de minimis rule. Although we noted in Lindow, that “most

courts have found daily periods of approximately 10 minutes

de minimis even though otherwise compensable,” we went on

to hold that “[t]here is no precise amount of time that may be

denied compensation as de minimis” and that “[n]o rigid rule

can be applied with mathematical certainty.” 738 F.2d at

1062. The panel went on to set forth a three-prong standard,

which would have been unnecessary if the panel had intended

to adopt a ten or fifteen minute rule.11

11The panel noted that the “plaintiffs spent an average of 7 to 8 minutes

a day reading the log book and exchanging information.” 738 F.2d at

1064. If the panel had intended to adopt a rigid rule, it could have simply

concluded that because the activities took less than ten minutes they were

per se de minimis. 

3254 RUTTI v. LOJACK CORP.
[14] The application of this three-prong test to the facts in

this case do not compel a conclusion that the PDT transmissions are de minimis. The first prong, “the practical administrative difficulty of recording the additional time,” id. at 1063,

is closely balanced in this case. Certainly, it is difficult to

determine exactly how much time each technician spends

daily on the PDT transmissions. It is also not clear what activities should be covered. Is the time when the technician comes

back to check to see if the transmission was successful

included? When a technician is waiting until ten minutes after

the hour, is he “engaged to wait” or “waiting to be engaged?”

See Owens, 971 F.2d at 350. Although it may be difficult to

determine the actual time a technician takes to complete the

PDT transmissions, it may be possible to reasonably determine or estimate the average time. For example, there is evidence in the record that Lojack had agreed to pay one

technician an extra 15 minutes a day to cover the time spent

on PDT transmissions. In sum, the inherent difficulty of

recording the actual time spent on a particular PDT transmission does not necessarily bar a determination that the PDT

transmissions are not de minimis. See Reich v. Monfort, Inc.,

144 F.3d 1329, 1334 (10th Cir. 1998) (holding that the time

it took meat packers to don and shed their employer-mandated

clothing was not de minimis even though “the practical difficulty of supervising and recording the additional time weighs

in favor of finding it noncompensable”).

The other two prongs, “the aggregate amount of compensable time,” and “the regularity of the additional work,” Lindow,

738 F.2d at 1063, favor Rutti. Rutti asserts that the transmissions take about 15 minutes a day. This is over an hour a

week. For many employees, this is a significant amount of

time and money. Also, the transmissions must be made at the

end of every work day, and appear to be a requirement of a

technician’s employment. This suggests that the transmission

“are performed as part of the regular work of the employees

in the ordinary course of business,” Dunlop, 527 F.2d at 401,

and accordingly, unless the amount of time approaches what

RUTTI v. LOJACK CORP. 3255
the Supreme Court termed “split-second absurdities,” the

technician should be compensated. See Anderson, 328 U.S. at

692. 

[15] Our review of the record suggests that the PDT transmissions are an integral part of Rutti’s principal activities and

that there are material issues of fact as to whether the PDT

transmissions are de minimis. Accordingly, the grant of summary judgment in favor of Lojack on Rutti’s claim for the

transmissions must be vacated. See Balint v. Carson City,

Nev., 180 F.3d 1047, 1054 (9th Cir. 1999) (holding that in

reviewing a grant of summary judgment, we do “not weigh

the evidence or determine the truth of the matter, but only

determines whether there is a genuine issue for trial”). This

does not mean that on remand, Lojack may not be able to

make a persuasive factual showing for summary judgment

under the standard clarified in this opinion. We, however,

decline to make such a decision in the first instance.

C. Rutti’s off-the-clock activities do not extend his

workday under the continuous workday doctrine.

Finally, Rutti argues that under the continuous workday doctrine,12 because his work begins and ends at home, he is entitled to compensation for his travel time, citing Dooley v.

Liberty Mutual Ins. Co., 307 F. Supp. 2d 234 (D. Mass.

2004). In Dooley, automobile damage appraisers sought compensation for the time they spent traveling from their offices

in their homes to locations where they inspected damaged

cars. Id. at 239. The district court first determined that the

work the appraisers undertook at home constituted principal

activities.13 Id. at 242. The court then determined that com12See IBP, Inc. v. Alvarez, 546 U.S. 21, 29 (2005), noting that “the

Department of Labor has adopted the continuous workday rule, which

means that the ‘workday’ is generally defined as ‘the period between the

commencement and completion on the same workday of an employee’s

principal activity or activities.’ [29 C.F.R.] § 790.6(b).” 

13The court explained: “Appraisers are required, as part of their job

duties, to check their email and voice mail, to prepare their computers for

use, and to return telephone calls. These tasks are ‘part of the regular work

of the employees.’ ” Dooley, 307 F. Supp. 2d. at 242 (citing Dunlop, 527

F.2d at 401). 

3256 RUTTI v. LOJACK CORP.
pensation was not prohibited by the Portal-to-Portal Act,14 and

concluded that those appraisers who could show that they performed work at home before or after their daily appraisals

were entitled to compensation. Id. at 249. 

[16] Even were we to adopt the continuous workday doctrine set forth in Dooley, Rutti would not be entitled to compensation for his travel time to and from the job sites. We

have already determined that Rutti’s preliminary activities

that are not related to his commute are either not principal

activities or are de minimis. Accordingly, his situation is not

analogous to the situation in Dooley. See 307 F. Supp. 2d at

245 (“The first and last trip of the day for these appraisers is

not a commute in the ordinary sense of the word — it is a trip

between their office, where their administrative work is performed, and an off-site location.”).

[17] Our determination that Rutti’s postliminary activity,

the PDT transmission, is integrally related to Rutti’s principal

activities might support the extension of his work day through

his travel back to his residence, were it not for 29 C.F.R.

§ 785.16. This regulation provides that “[p]eriods during

which an employee is completely relieved from duty and

which are long enough to enable him to use the time effec14The court reasoned: 

The Portal-to-Portal Act applies only to those activities that occur

“either prior to the time on any particular workday at which such

employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 29 U.S.C. § 254(a). I concluded, above, that the plaintiffs’

alleged activities at home constitute principal activities. Because

the plaintiffs’ drive to the first appraisal site does not occur “prior

to the time [the] employee commences [his or her] principal

activity or activities,” the drive is outside the ambit of the Portalto-Portal Act. The default rule of the FLSA — that the plaintiffs

must be paid — applies. See 29 C.F.R. § 790.6(a). 

Dooley, 307 F. Supp. 2d at 243. 

RUTTI v. LOJACK CORP. 3257
tively for his own purposes are not hours worked.”

15 Lojack

allows a technician to make the transmissions at any time

between 7:00 p.m. and 7:00 a.m. Thus, from the moment a

technician completes his last installation of the day, he “is

completely relieved from duty.” His only restriction is that

sometime during the night he must complete the PDT transmission. Because he has hours, not minutes, in which to complete this task, the intervening time is “long enough to enable

him to use the time effectively for his own purpose.” See

Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1413 (5th Cir.

1990) (holding that waiting time “greater than forty-five minutes are not compensable because Plaintiffs were not required

to remain on Defendant’s premises during such periods and

could use such periods effectively for their own purposes”).

Rutti has not shown that the district court erred in determining

that neither his preliminary nor postliminary activities

extended his workday under the continuous workday doctrine.

IV.

We substantially agree with the district court’s grant of

summary judgment in favor of Lojack on Rutti’s claims for

overtime compensation. We agree that Rutti is not entitled to

compensation under federal law for his commute to and from

his job sites in a vehicle provided by Lojack. We agree that

Rutti is not entitled to compensation for his preliminary activities as those activities are either not principal activities, or if

15Subsection (a) of 29 C.F.R. § 785.16 states: 

Periods during which an employee is completely relieved from

duty and which are long enough to enable him to use the time

effectively for his own purposes are not hours worked. He is not

completely relieved from duty and cannot use the time effectively

for his own purposes unless he is definitely told in advance that

he may leave the job and that he will not have to commence work

until a definitely specified hour has arrived. Whether the time is

long enough to enable him to use the time effectively for his own

purposes depends upon all of the facts and circumstances of the

case. 

3258 RUTTI v. LOJACK CORP.
principal activities, are de minimis. However, we vacate the

district court’s grant of summary judgment on Rutti’s claim

for compensation for the PDT transmissions because it

appears that this function is integral to Rutti’s principal activities for Lojack and the record does not compel a determination that the time consumed by this function is de minimis.

We also agree with the district court that Rutti is not entitled to compensation for his commute time under the continuous workday doctrine because, as noted, his preliminary

activities are either not principal activities or are de minimis.

In addition, accepting that the postliminary PDT transmission

is a principal activity, the fact that Rutti is not required to

make the transmission at any specific time means that he may

use the intervening time for his own purposes, and accordingly pursuant to 29 C.F.R. § 785.16, Lojack need not compensate him for the intervening time.

The district court’s grant of summary judgment is affirmed

except as to Rutti’s claims for compensation for commuting

under state law and for the required postliminary PDT transmission, which are vacated. This matter is remanded for further proceedings consistent with this opinion. Each party to

bear its own costs.

AFFIRMED in part, VACATED in part, and

REMANDED.

Separate Opinion by Judge SILVERMAN:1

Compensation for Commute Time under California Law

[18] Rutti contends that even if his commute is not compensable under the federal Employment Commuter Flexibility

1

Judge Hall joins in this opinion. Judge Callahan dissents. 

RUTTI v. LOJACK CORP. 3259
Act, it is nevertheless compensable under California law. California law requires that employees be compensated for all

time “during which an employee is subject to the control of

an employer.” Morillion v. Royal Packing Co., 22 Cal. 4th

575, 578 (2000). In Morillion, the California Supreme Court

held that the plaintiffs were “subject to the control” of their

employer during a mandatory bus commute because “plaintiffs could not drop off their children at school, stop for breakfast before work, or run other errands requiring the use of a

car.” Id. at 586. The California Supreme Court reasoned that

the “[p]laintiffs were foreclosed from numerous activities in

which they might otherwise engage if they were permitted to

travel to the fields by their own transportation.” Id. That is

precisely the situation here. Rutti was required to drive the

company vehicle, could not stop off for personal errands,

could not take passengers, was required to drive the vehicle

directly from home to his job and back, and could not use his

cell phone while driving except that he had to keep his phone

on 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. There is simply no denying that Rutti

was under Lojack’s control while driving the Lojack vehicle

en route to the first Lojack job of the day and on his way

home at the end of the day.

[19] The dissent attempts to distinguish Morillion by summarily concluding that “Rutti’s use of Lojack’s automobile to

commute to and from his job sites is more analogous to the

‘home to departure points’ transportation in Morillion than to

the employees’ transportation on the employer’s buses.”

Aside from the lack of factual analysis to support this ipse

dixit, the dissent also utterly ignores the relevant question

under California law, which is whether Rutti was “subject to

the control of an employer” during his mandatory travel time.

A straightforward application of Morillion easily answers that

question in the affirmative. Rutti was required not only to

drive the Lojack vehicle to and from the job site, but was for3260 RUTTI v. LOJACK CORP.
bidden from attending to any personal business along the way.

Because he was obviously under the employer’s control in

these circumstances he was, under California law, entitled to

be paid.2

The dissent makes the mistake of assuming that any

employer-mandated travel that begins or ends at home is automatically noncompensable, but that assumption again ignores

the controlling legal principle. Under California law it is the

“level of the employer’s control over its employees” that “is

determinative,” not whether the employee just so happens to

depart from, or return to, his home instead of some other location. Id. at 587. Here, the level is total control. To repeat,

Rutti was required to use the company truck and was permitted no personal stops or any other personal use. Thus, under

Morillion, Rutti had a valid state-law claim for compensation.

The district court’s grant of summary judgment as to Rutti’s

claim for compensation for commuting under California law

is reversed. 

2The additional cases cited by the dissent do nothing to advance its conclusion. In Overton v. Walt Disney Co., 136 Cal. App. 4th 263, 271

(2006), the court held that time spent by an employee on an employerprovided shuttle bus from the employer parking lot to the job site was not

compensable because the employees were not required to use the parking

lot or to take the shuttle. In contrast, Rutti was required to drive the company vehicle and was subject to numerous restrictions while doing so. The

dissent also cites Burnside v. Kiewit Pac. Corp., 491 F.3d 1053 (9th Cir.

2007), which it says gave “no suggestion that the employees [in Morillion]

were entitled to compensation for commuting to the designated meeting

points.” But no one has ever suggested that the employees in Morillion

were entitled to compensation for that time — they clearly were not “subject to the control of an employer” then. Finally, California Labor Code

§ 510(b) does not apply to compulsory travel time. See Morillion, 22 Cal.

4th at 590 n.6. 

RUTTI v. LOJACK CORP. 3261
HALL, Circuit Judge, concurring in part and dissenting in

part: 

I join in Judge Callahan’s opinion except as to Rutti’s claim

for compensation for the required postliminary PDT transmission, which I would affirm. I believe the time spent engaging

in PDT transmissions was de minimis. I also join in Judge

Silverman’s separate opinion on compensation for commuting

under California Law. 

There is no dispute regarding the process required for transmission: the task involved connecting the PDT to a modem,

scrolling down a menu on the PDT screen, and selecting the

“transmit” option to initiate uploading. No technician has contested that this process took any more than a couple of minutes. As the district court noted, 66 of the 70 purported class

members stated total PDT transmission activity took them

five minutes or less daily, and the remaining four stated the

transmission took them less than ten minutes daily. Even the

technician claiming to be paid fifteen minutes daily for his

PDT transmission acknowledged that the process actually

only took him a total of one to two minutes. Only Rutti

claimed that his PDT transmission would take up to fifteen

minutes to complete, which he attributed to the delays caused

by transmission failures. 

Also undisputed is the fact that LoJack clearly established

policies for technicians to follow in the event of transmission

difficulties. Technicians were required to notify LoJack of

errors, were provided technical support, and were instructed

on how to set their PDT to automatically transmit overnight.

Rutti followed none of these procedures. He did acknowledge,

however, that if he waited until 10 p.m., he had no difficulty

transmitting the data. 

While the majority is correct that Lindow did not establish

a per se rule that ten minutes or less is de minimis, the majority overlooks the facts of that case. In Lindow, the court

3262 RUTTI v. LOJACK CORP.
acknowledged that the range of time spent in the activity was

five to fifteen minutes, with an average time of seven to eight

minutes, yet found that time to be de minimis. Lindow v.

United States, 738 F.2d 1057, 1059-60. Here, the vast majority of purported class members state the transmission takes

five minutes or less, and likely only one to two minutes. A

postliminary activity requiring “only a few seconds or minutes of work beyond the scheduled working hours” is de

minimis. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

692 (1946).1 Only one person, Rutti, claims that the transmission takes up to fifteen minutes, and only if there are transmission difficulties. Other cases, relying on Lindow, have also

found ranges of five to fifteen minutes de minimis. See, e.g.,

Bobo v. United States, 37 Fed. Cl. 690, 702 (1997) (five to fifteen minutes de minimis even where activity was a principal

duty) aff’d Bobo v. United States, 136 F.3d 1465 (Fed. Cir.

1998). 

Those cases, like the district court here, rely heavily on the

administrative difficulty involved in recording the time spent.

While acknowledging this difficulty, the majority points to

the example of one technician who testified he was paid for

his PDT transmissions at the rate of fifteen minutes per day,

implying that LoJack could simply “extend” that practice to

all technicians. That technician, however, admitted that the

transmission only took him one to two minutes daily, but that

LoJack paid only in fifteen minute increments, so he rounded

1The majority cites heavily from the Anderson opinion to support its

policy discussion of compensable time and its interpretation of the scope

of the de minimis rule. See Opinion at n. 9 & 10. I separately object to this

reliance. Congress overruled the Anderson decision by passing the Portalto-Portal Act, which modified the FLSA, less than one year after the decision was reached in order to vitiate the very reasoning on which the majority now relies. See Carter v. Panama Canal Co., 463 F.2d 1289, 1293-94

(D.C. Cir. 1972). It is the Portal-to-Portal Act that excludes compensation

for commuting and preliminary and postliminary activities. See id.; see

also 29 U.S.C. § 254. Thus, the reliance on the Anderson case should be

restricted to its creation of the de minimis exception. 

RUTTI v. LOJACK CORP. 3263
up. The technician also admitted that he knew company policy required him to clock out from work each day at 5 p.m.,

whereas the fifteen minutes he recorded were after 5 p.m. The

record does not indicate that LoJack approved, or even was

aware of, this technician’s practice. This example, rather than

supporting the majority’s conclusion, highlights the difficulty

involved in recording such small periods of time. 

The majority is correct to note that the technicians must

also check back to see that the data was uploaded successfully, but this requires only a few seconds to do. Rutti testified

at his deposition that he would spend the time when the data

was transmitting watching television or making a sandwich.

And if he set-up the PDT transmission to occur automatically

overnight, as LoJack allowed, the transmission time could be

spent sleeping. This hardly satisfies the “engaged to wait”

standard to be compensable as required by Owens v. Local

No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347,

350 (9th Cir. 1992).

Finally, as Rutti argues, the PDT transmission took longer

than a couple of minutes only when the transmission required

multiple attempts to be successful. Even allowing for the possibility of multiple transmission attempts, each new attempt

would add only a few seconds of time to click “transmit”

again, and the employees’ time between transmission attempts

and during actual uploading would be spent on personal activities. As noted above, however, LoJack established procedures for technicians to follow if they experienced technical

difficulties, and required them to report any such failures.

Rutti admits he never followed procedure to notify LoJack of

his difficulties, nor did he set up his PDT transmission to

occur automatically. LoJack only required its employees to

perform a transmission it believed to be de minimis. If properly performed, as the vast majority of purported class members testified, the total transmission would likely require

under five minutes. In Forrester v. Roth’s IGA Foodliner, 646

F.2d 413, 414 (9th Cir. 1981), this court held that “where an

3264 RUTTI v. LOJACK CORP.
employer has no knowledge that an employee is engaging in

overtime work and that employee fails to notify the employer

or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for

the overtime hours is not a violation of [the FLSA].” Rutti’s

deliberate actions in violating company procedure that would

have notified LoJack of the problems he experienced, or, in

the case of the automatic transmission, would have prevented

the difficulties, cannot now be held against LoJack. 

Thus, even if the transmission is construed to be a principal

activity, it is still not compensable because it is de minimis.

And even if the transmission were not de minimis, LoJack is

still entitled to summary judgment if Rutti failed to inform

LoJack of the time he spent on the transmissions beyond a de

minimis time. I conclude that this is precisely the type of

activity the Portal-to-Portal Act and the de minimis rule were

designed to reach. I respectfully dissent from that portion of

the opinion which concludes otherwise. 

CALLAHAN, Circuit Judge, dissenting from Judge Silverman’s opinion on compensation for commuting under state

law:

Rutti contends that even if his commute is not compensable

under ECFA, it is compensable under California law pursuant

to Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000). He

asserts that in Morillion, the California Supreme Court

adopted a standard more favorable to employees “by merely

requiring that the worker be subject to the ‘control of the

employer’ in order to be entitled to compensation.” 

The “control of the employer” standard set forth in Morillion may be more favorable to employees than federal law,

but it does not cover Rutti’s commute. In Morillion, the

employer required the employees “to meet at the departure

RUTTI v. LOJACK CORP. 3265
points at a certain time to ride its buses to work, and it prohibited them from using their own cars.” Id. at 587. The court

held that under California law, the employees’ “compulsory

travel time, which includes the time they spent waiting for

[the employer’s] buses to begin transporting them, was compensable,” but “the time [the employees] spent commuting

from home to the departure points and back again is not.” Id.

at 587-88. Here, Rutti’s use of Lojack’s automobile to commute to and from his job sites is more analogous to the “home

to departure points” transportation in Morillion than to the

employees’ transportation on the employer’s buses.1

My review of subsequent cases construing California law

fails to reveal any case extending Morillion to cover Rutti’ situation. In Overton v. Walt Disney Co., 136 Cal. App. 4th 263,

271 (2006), the court held that time spent by an employee on

an employer-provided shuttle bus from the employer-provided

parking lot to the job site was not compensable because

employees were not required to use the parking lot or to take

the shuttle. In Burnside v. Keiwit Pacific Corp., 491 F.3d

1053 (9th Cir. 2007), we read Morillion as covering “employees for time spent traveling from designated meeting points to

their job sites and back” in company provided vehicles. Id. at

1070. There was no suggestion that the employees were entitled to compensation for commuting to the designated meeting points. The decision in Ghazaryan v. Diva Limousine Ltd.,

169 Cal. App. 4th 1524 (2008), similarly concerned time

spent by limousine drivers between calls, not the time spent

commuting from home to their first assignments. Furthermore, our reading of Morillion is consistent with California

Labor Code § 510(b), which provides that “[t]ime spent commuting to and from the first place at which an employee’s

1

I note that in Morillion, the California Supreme Court stated: “we

emphasize that employers do not risk paying employees for their travel

time merely by providing them transportation.” 22 Cal. 4th at 588.

Although Rutti was required to drive the company vehicle, he was free to

determine when he left and his route. 

3266 RUTTI v. LOJACK CORP.
presence is required by the employer shall not be considered

to be a part of a day’s work, when the employee commutes

in a vehicle that is owned, leased, or subsidized by the

employer and is used for the purpose of ridesharing.”

2

Accordingly, I dissent from Judge Silverman’s opinion and

would hold that the district court properly held that Rutti is

not entitled to compensation for the time spent commuting to

and from his job sites in a vehicle provided by Lojack under

either 29 U.S.C. § 254(a)(2) or California law.

2

“ ‘Ridesharing’ means two or more persons traveling by any mode,

including, but not limited to, carpooling, vanpooling, buspooling, taxipooling, jitney, and public transit.” Cal. Veh. Code § 522. If the provision

of a vehicle by the employer for commuting does not constitute part of a

day’s work when the employee has to share the vehicle with other employees, it follows that it should not constitute part of a day’s work when the

employee’s use of the employer-provided vehicle is freed of such a limitation. 

RUTTI v. LOJACK CORP. 3267