Rutti v. Lojack Corporation ( 2009 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MIKE RUTTI,                             
    Plaintiff-Appellant,
    and
    KEVIN VERMILLION; ISAAC
    CHARLESWORTH; MURRAY M.
    MYERS; DAN JOHNSTON; ORLANDO                  No. 07-56599
    JASON WHITE; GICARDO LEAL;
    PHILIP REDFIELD; JEROME CHARLES                D.C. No.
    CV-06-00350-DOC
    WEISS; NICK KAMINSKY; MARCUS E.
    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 August 21, 2009
    Before: Cynthia Holcomb Hall, Barry G. Silverman and
    Consuelo M. Callahan, Circuit Judges.
    Opinion by Judge Callahan;
    Partial Concurrence and Partial Dissent by Judge Hall;
    Partial Concurrence and Partial Dissent by Judge Silverman
    11449
    RUTTI v. LOJACK CORP.             11453
    COUNSEL
    Matthew Righetti and John Glugoski (argued) of the Righetti
    Law Firm of San Francisco, California, for the plaintiffs-
    appellants.
    Peter D. Holbrook, Dan Chammas (argued) and Jennifer Fer-
    covich of McDermott Will & Emery LLP of Los Angeles,
    California, for the defendant-appellee.
    11454                     RUTTI v. LOJACK CORP.
    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 postliminary1 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 con-
    sumed a de minimis amount of time. We affirm the district
    court’s denial of compensation for Rutti’s commute and for
    his preliminary activities. However, we vacate the district
    court’s grant of summary judgment on Rutti’s postliminary
    activity of required daily portable data transmissions, and
    remand the matter to the district court for further proceedings
    consistent with this opinion.
    1
    Although 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 princi-
    pal 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.
    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.                       11455
    I.
    A.     Facts
    Rutti was employed by Lojack as one of its over 450
    nationwide technicians who install and repair vehicle recov-
    ery 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 com-
    pensation 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.2 Rutti also alleged
    that he spent time in the morning receiving assignments for
    the day, mapping his routes to the assignments, and prioritiz-
    ing 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.3 In addition, it appears that Rutti may
    2
    During 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.
    3
    In the district court, Rutti also sought compensation for time spent
    washing his work clothes, washing and maintaining the company car, driv-
    ing 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.
    11456                RUTTI v. LOJACK CORP.
    have completed some minimal paperwork at home before he
    left for his first job.
    During the day, Rutti recorded information about the instal-
    lations he performed on a portable data terminal (“PDT”) pro-
    vided 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 suc-
    cessful, and there is evidence in the record that it often took
    more than one attempt to successfully complete a transmis-
    sion. Lojack’s Installer Training Manual instructed techni-
    cians not to transmit their PDT data ten minutes before or
    after the hour because the corporate computer system is auto-
    matically 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 mes-
    sage, 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 discov-
    ery, 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
    RUTTI v. LOJACK CORP.                       11457
    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
    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.4 We agree with the district
    4
    Before 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).
    11458                    RUTTI v. LOJACK CORP.
    court’s treatment of all of these issues except as to its grant
    of summary judgment on Rutti’s mandatory off-the-clock
    PDT transmissions.5
    A.       Rutti is not entitled to reimbursement for
    commuting
    Rutti offers three arguments in support of his claim that he
    is entitled to compensation for commuting in the vehicle pro-
    vided by Lojack. First, he asserts, based on a United States
    Department of Labor letter dated April 3, 1995, that he is enti-
    tled 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 restric-
    tions Lojack placed on his use of the vehicle rendered the
    commute compensable. Third, Rutti contends that even if he
    is not entitled to compensation under federal law, he is enti-
    tled to compensation for his commute time under California
    law. We do not find Rutti’s arguments persuasive.
    1.   Pursuant to the Employee Commuting 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 com-
    mute in the vehicle provided by Lojack, he did not voluntarily
    agree to the arrangement and is therefore entitled to compen-
    sation. This argument is based on a Department of Labor let-
    5
    Rutti 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. Califor-
    nia 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.
    RUTTI v. LOJACK CORP.                11459
    ter 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 “condi-
    tion of employment,” then the employee must be compen-
    sated for the commute time.
    Even assuming that Rutti might have been entitled to com-
    pensation for his commute under the April 3, 1995 letter at the
    time it was written, his claim to compensation does not sur-
    vive the passage of the Employee Commuting Flexibility Act
    (“ECFA”), 
    29 U.S.C. § 254
    (a)(2). The language of the ECFA
    and its legislative history compel the conclusion that the req-
    uisite “agreement” concerning the use of an employer’s vehi-
    cle 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 postlimi-
    nary 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
    11460                RUTTI v. LOJACK CORP.
    activities performed by an employee which are inci-
    dental 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 employ-
    er’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 represen-
    tative 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
    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 Con-
    gress 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 omit-
    ted); 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
    RUTTI v. LOJACK CORP.                 11461
    through a formal written agreement between the employee
    and employer, a collective bargaining agreement between the
    employee’s representatives and the employer, or an under-
    standing 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 commut-
    ing 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 agree-
    ment between the employer and employee or the terms of a
    collective bargaining agreement.” 142 CONG. REC. 12234
    (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 activ-
    ities.” 
    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 princi-
    pal activities for Lojack. Rutti cites Lojack’s restrictions
    against using the vehicle for personal pursuits and transport-
    ing 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 legisla-
    11462                RUTTI v. LOJACK CORP.
    tive 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 spe-
    cific 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
    child at school on the way to work.” 
    Id. at 13
    . The failure of
    the minority report to stimulate any change in the bill indi-
    cates that Congress did not object to employers setting condi-
    tions 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 cogni-
    zable 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 pro-
    tection of the [FLSA] if they are an integral part of and are
    essential to the principal activities of the employees”) (quot-
    ing 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
    RUTTI v. LOJACK CORP.                11463
    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 per-
    sonal 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 ben-
    efit of their employer, “the burdens alleged are insufficient to
    pass the de minimis threshold.” 
    Id. at 1468
    . The court specifi-
    cally 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
    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 unau-
    thorized detours or stops. 
    Id.
     The Federal Circuit held that
    pursuant to 
    29 U.S.C. § 254
    (a), merely commuting was insuf-
    ficient; “the plaintiffs must perform additional legally cogni-
    zable 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 show-
    ing 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.”
    11464                   RUTTI v. LOJACK CORP.
    
    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 restric-
    tion on making personal stops did not make the commute time
    compensable. Bobo, 
    136 F.3d at 1468
    . Moreover, this restric-
    tion is not directly related to Rutti’s principal activities for
    Lojack. In addition, although the police officers in both Bobo
    and Adams were required to monitor their communications
    equipment, in neither case was this considered sufficient to
    compel compensation.6 In light of Rutti’s failure to cite any
    authority supporting a claim that Lojack’s restrictions consti-
    tute “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 to compensation for the
    time he spends commuting in Lojack’s vehicle.
    3.   Rutti has failed to show that he is entitled to compen-
    sation under California law for his commute in
    Lojack’s vehicle.
    Rutti contends that even if his commute is not compensable
    6
    Although 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.                      11465
    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.”
    [7] 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
    points at a certain time to ride its buses to work, and it prohib-
    ited 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 com-
    pensable,” 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 com-
    mute 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.7
    Our review of subsequent cases construing California law
    fails to reveal any case extending Morillion to cover Rutti’ sit-
    uation. 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 7
    Although this is a close issue, our reading of Morillion is informed by
    the court’s statement “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, his route, and which
    assignment he drove to first.
    11466                    RUTTI v. LOJACK CORP.
    1053 (9th Cir. 2007), we read Morillion as covering “employ-
    ees 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 enti-
    tled to compensation for commuting to the designated meet-
    ing 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. Further-
    more, our reading of Morillion is consistent with California
    Labor Code § 510(b), which provides that “[t]ime spent com-
    muting to and from the first place at which an employee’s
    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.”8
    [8] Accordingly, we conclude that the district court prop-
    erly held that Rutti is not entitled to compensation for the time
    spent commuting to and from his job sites in a vehicle pro-
    vided by Lojack under either 
    29 U.S.C. § 254
    (a)(2) or Cali-
    fornia law.
    B.    One of Rutti’s off-the-clock activities may be
    compensable
    [9] 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
    8
    “ ‘Ridesharing’ means two or more persons traveling by any mode,
    including, but not limited to, carpooling, vanpooling, buspooling, taxi
    pooling, 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 employ-
    ees, 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 limita-
    tion.
    RUTTI v. LOJACK CORP.              11467
    compensation, also provides that an employer need not com-
    pensate 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 com-
    pensable is not if the time involved is de minimis. Accord-
    ingly, 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.
    1.        Applicable Case Law
    a.     The definition of “principal activities“
    [10] We first considered the definition of “principal activi-
    ties” in Lindow v. United States, 
    738 F.2d 1057
     (9th Cir.
    1984). The plaintiffs in that case sought overtime compensa-
    tion for up to 15 minutes of work before the start of their
    shifts. 
    Id. at 1059
    . We held that pre-shift activities are com-
    pensable 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 per-
    formed.” 
    Id.
     at 1061 (citing 
    29 C.F.R. § 790.8
    (a)).
    The Fifth Circuit adopted a similar broad definition of prin-
    cipal 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 activi-
    ties. The Fifth Circuit adopted a broad definition, holding
    that:
    11468                   RUTTI v. LOJACK CORP.
    The test, therefore, to determine which activities are
    “principal” and which are “an integral and indispens-
    able part” of such activities, is not whether the activ-
    ities 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 wir-
    ing; 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 ordi-
    nary course of that business. We find that the pre-
    8:00 a.m. activities performed by the electricians and
    their helpers were within the broad range of “princi-
    pal 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).9
    In Owens v. Local No. 169, Ass’n of W. Pulp & Paper
    Workers, 
    971 F.2d 347
     (9th Cir. 1992), we approached “prin-
    cipal 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
    ,
    9
    The Fifth Circuit, however, remanded the case “for further determina-
    tion 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.                    11469
    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).
    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 Cir-
    cuit’s opinion in Dunlop suggests that we pay particular atten-
    tion to whether the activities “are performed as part of the
    regular work of the employees in the ordinary course of busi-
    ness.” 
    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
    [11] 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 recog-
    nized that an employer’s obligation to pay for the employees’
    efforts had to be moderated by a de minimis rule.10 We cited
    the Supreme Court’s statement that:
    10
    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
    11470                   RUTTI v. LOJACK CORP.
    When the matter in issue concerns only a few sec-
    onds or minutes of work beyond the scheduled work-
    ing hours, such trifles may be disregarded. Split-
    second 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
    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 spe-
    cifically 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. None-
    theless, 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
    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 rea-
    sons. It would be unfair and impractical to compensate them for doing that
    which they were not required to do.” 
    Id. at 692
    .
    RUTTI v. LOJACK CORP.                      11471
    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:
    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
    ).11
    11
    In Anderson, the Supreme Court indicated that an employee was enti-
    tled 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
    11472                    RUTTI v. LOJACK CORP.
    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 prelimi-
    nary activities, and those that take place after he returns home,
    i.e. his postliminary activities.
    a.     Preliminary Activities
    [12] 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.
    [13] 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 noth-
    ing to suggest that this took more than a minute or so. Thus,
    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 stat-
    utory rights on such a basis. Unless the employer can provide
    accurate estimates, it is the duty of the trier of facts to draw what-
    ever 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
    .
    RUTTI v. LOJACK CORP.                11473
    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 dis-
    trict court properly granted Lojack summary judgment on
    Rutti’s claim for compensation for preliminary activities.
    b.   Postliminary Activities
    [14] 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 busi-
    ness and [are] performed by the employees, primarily for the
    benefit of the employer, in the ordinary course of that busi-
    ness.” Dunlop, 
    527 F.2d at 401
    . Accordingly, at least on sum-
    mary judgment, the district court could not determine that this
    activity was not integral to the Rutti’s principal activities.
    [15] 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 transmis-
    sion, 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
    11474                   RUTTI v. LOJACK CORP.
    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.12
    [16] The application of this three-prong test to the facts in
    this case do not compel a conclusion that the PDT transmis-
    sions are de minimis. The first prong, “the practical adminis-
    trative 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 activ-
    ities 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 deter-
    mine or estimate the average time. For example, there is evi-
    dence in the record that Lojack had agreed to pay one
    technician an extra 15 minutes a day to cover the time spent
    12
    The 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.
    RUTTI v. LOJACK CORP.                 11475
    on PDT transmissions. In sum, the inherent difficulty of
    recording the actual time spent on a particular PDT transmis-
    sion 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 diffi-
    culty of supervising and recording the additional time weighs
    in favor of finding it noncompensable”).
    The other two prongs, “the aggregate amount of compensa-
    ble time,” and “the regularity of the additional work,” Lindow,
    
    738 F.2d at 1063
    , favor Rutti. Rutti asserts that the transmis-
    sions 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
    the Supreme Court termed “split-second absurdities,” the
    technician should be compensated. See Anderson, 
    328 U.S. at 692
    .
    [17] Our review of the record suggests that the PDT trans-
    missions 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 sum-
    mary 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
    11476                       RUTTI v. LOJACK CORP.
    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 doc-
    trine,13 because his work begins and ends at home, he is enti-
    tled 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 com-
    pensation 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.14 
    Id. at 242
    . The court then determined that com-
    pensation was not prohibited by the Portal-to-Portal Act,15 and
    13
    See 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).”
    14
    The 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
    ).
    15
    The 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 particu-
    lar workday at which he ceases, such principal activity or activi-
    ties.” 
    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 Portal-
    to-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.                      11477
    concluded that those appraisers who could show that they per-
    formed work at home before or after their daily appraisals
    were entitled to compensation. 
    Id. at 249
    .
    [18] Even were we to adopt the continuous workday doc-
    trine set forth in Dooley, Rutti would not be entitled to com-
    pensation 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 per-
    formed, and an off-site location.”).
    [19] 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 effec-
    tively for his own purposes are not hours worked.”16 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
    16
    Subsection (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.
    11478                 RUTTI v. LOJACK CORP.
    completely relieved from duty.” His only restriction is that
    sometime during the night he must complete the PDT trans-
    mission. Because he has hours, not minutes, in which to com-
    plete 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 min-
    utes 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 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 activi-
    ties are either not principal activities, or if 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 con-
    sumed by this function is de minimis.
    We also agree with the district court that Rutti is not enti-
    tled to compensation for his commute time under the continu-
    ous 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 accord-
    RUTTI v. LOJACK CORP.                11479
    ingly pursuant to 
    29 C.F.R. § 785.16
    , Lojack need not com-
    pensate him for the intervening time.
    The district court’s grant of summary judgment is affirmed
    except as to Rutti’s claim for compensation for the required
    postliminary PDT transmission, which is vacated. This matter
    is remanded for further proceedings consistent with this
    opinion. Each party to bear its own costs.
    HALL, Circuit Judge, concurring in part and dissenting in
    part:
    I join in the opinion except as to Rutti’s claim for compen-
    sation for the required postliminary PDT transmission, which
    I would also affirm. I believe the time spent engaging in PDT
    transmissions was de minimis.
    There is no dispute regarding the process required for trans-
    mission: 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 con-
    tested that this process took any more than a couple of min-
    utes. 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
    11480                   RUTTI v. LOJACK CORP.
    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 major-
    ity overlooks the facts of that case. In Lindow, the court
    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 major-
    ity 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 min-
    utes 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 transmis-
    sion takes up to fifteen minutes, and only if there are trans-
    mission 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 fif-
    teen minutes de minimis even where activity was a principal
    duty) aff’d Bobo v. United States, 
    136 F.3d 1465
     (Fed. Cir.
    1998).
    1
    The 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. 10 & 11. I separately object to
    this reliance. Congress overruled the Anderson decision by passing the
    Portal-to-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 com-
    pensation 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.                 11481
    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
    up. The technician also admitted that he knew company pol-
    icy 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 success-
    fully, 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 pos-
    sibility 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 activ-
    ities. As noted above, however, LoJack established proce-
    dures for technicians to follow if they experienced technical
    11482                RUTTI v. LOJACK CORP.
    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 prop-
    erly performed, as the vast majority of purported class mem-
    bers 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
    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 knowl-
    edge 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.
    SILVERMAN, Circuit Judge, concurring in part and dissent-
    ing in part:
    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 “plain-
    RUTTI v. LOJACK CORP.                      11483
    tiffs could not drop off their children at school, stop for break-
    fast 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. There is sim-
    ply no denying that Rutti was under Lojack’s control while
    driving the Lojack vehicle en route to the first Lojack job.
    The majority attempts to distinguish Morillion by summa-
    rily 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 majority 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 the job site, but was forbidden
    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.1
    1
    The additional cases cited by the majority 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 employer-
    provided 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
    11484                   RUTTI v. LOJACK CORP.
    The majority makes the mistake of assuming that any
    employer-mandated travel that begins at home is automati-
    cally noncompensable, but that assumption again ignores the
    controlling legal principle. 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 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. I would, therefore, reverse
    the dismissal of this portion of his lawsuit. To that extent, I
    respectfully dissent, but I agree with the balance of the major-
    ity opinion.
    company vehicle and was subject to numerous restrictions while doing so.
    The majority 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.