Fair Labor Standards Act, 29 U.S.C. § 203(o) states that the changing of clothes or washing at the beginning or end of the workday is not compensable time. So the question is, what are clothes? How about the donning of protective gloves, face masks, or smocks? Which of these activities constitutes compensable time? In a five-page opinion, the U.S. Department of Labor clarified these issues:
... the Administrator is issuing this interpretation of the term “clothes” in § 203(o), and of whether clothes changing covered by § 203(o) is a principal activity, to provide needed guidance on these important and frequently litigated issues.
After analyzing the history of interpretation, the Administrator opined that the section 203(o) clothing exception "does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job," essentially adopting the "plain meaning" rule from Alvarez v. IBP, Inc. (9th Cir. 2003) 339 F.3d 894 "that protective equipment does not fit within the definition of “clothes” under § 203(o), thereby making compensable the time workers spend donning and doffing that equipment ... [giving] the relevant language its ordinary, contemporary, common meaning." (Internal quotations omitted.)
As reported, the Supreme Court heard oral argument in April, and just issued a unanimous decision in City of Ontario v. Quon. The gist of the decision is that the employee did not have a reasonable expectation of privacy in the pager, and thus the City was entitled to search it. However, the Court came to that conclusion on the narrowest possible grounds, preferring not to make determinations about future technologies today. From the SCOTUS Blog:
...the court unanimously held that it was constitutional to search a police officer’s text messages to a woman with whom he was having an affair. The warrantless search was not an unreasonable violation of the officer’s 4th Amendment privacy rights because it was motivated by legitimate work-related purposes ─ the City of Ontario, Calif. was trying to determine whether it needed to alter its wireless contract, which imposed fees after city employees exceeded character limits on text messages.
The Court avoided a discussion whether the individual had a reasonable expectation of privacy in the equipment, by stating that the outcome would have been the same one way or the other. The court's justification for avoiding this analysis was that (1) it was not clear that initial analysis (whether the "operational realities" of the situation lowered the employee's expectation of privacy) was required, and (2) they wanted to avoid setting precedent on rapidly changing technologies and society's view regarding privacy. Therefore, to proceed, the Court began with these assumptions:
First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City;
[S]econd, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and
[T]hird, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.
So the analysis proceeded to answer the limited question whether the city's search was reasonable. Generally, the court observed, warrantless searches are per se unreasonable under the Fourth Amendment. However, one exception is for the "special needs of the workplace":
...when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search.
The Court found that reviewing the messages to see if (1) the employee was not being forced to pay for excessive work-related messages, and (2) that the City was not being forced to pay for extensive personal communications were legitimate reasons to be reviewing the messages at all. And as to scope, "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use" -- and thus not excessively intrusive.
Some ancillary points of note:
Other reasons the investigation was not intrusive: (1) once the investigator had the information he needed, he redacted the content to include only what was necessary to show the extent of the personal messages, (2) it was conducted for only a two-month period, though even an audit of all months of overages would have been reasonable, (3) Quon was told not to expect messages sent on the system would be private.
As to the Ninth Circuit's finding that the audit of all his pager messages for two months was not the least intrusive means, the Court held that there is no requirement for least intrusive means, and that an more intrusive search may yet be reasonable.
As to the fact that the provider (Arch Wireless) violated the Stored Communications Act by turning over the messages, that fact does not lead to the conclusion that the City's search was unreasonable.
In determining the mens rea under corporate criminal liability, federal courts have sometimes used a theory of "collective knowledge" ... "... the sum of the knowledge of all of the employees." U.S. v. Bank of New England, 821 F.2d 844 (1st Cir. 1987).
This appears not to be the case in Massachusetts state court, which held in Commonwealth v. Life Care Centers of America, Inc., 926 N.E.2d 206 (2010), that "this theory is illogical and such an argument cannot succeed. If at least one employee did not act wantonly or recklessly, then the corporation cannot be held to a higher standard of culpability by combining various employees' acts."
The court notes several federal cases that have not endorsed collective knowledge, and also notes that this case is different from the Bank of New England case because it does not involve a Federal regulatory offense. In this case the crime charged was involuntary manslaughter, which the court noted "requires an act taken in disregard of a high probability of harm to others so that the act is wanton or reckless."
In Martinez v. Combs, the California Supreme Court addressed the issue of who qualifies as an employer for certain aspects of the Labor Code's minimum wage and overtime laws. In that case, agricultural workers sued both their bona fide employers and also merchants and distributors of the employer's products. The workers claimed these later organizations qualified as "employers."
The Supreme Court credited the lower courts' holdings that merchants and distributors that they were not employers of these workers. The Court held, in essence that an employer is one who: 1) exercises control over wages, hours, or working conditions; 2) suffers or permits to work; or 3) engages, creating a common law employment relationship. This is a broader definition than under the FLSA, and appears to further California’s public policy provide greater protection to employees.
In City of Ontario v. Quon, a SWAT team was issued pagers, and allowed to use them partially for personal reasons so long as the team-members paid for the personal use. This was in contradiction to standard procedure: employees had no privacy rights to information stored on city equipment. Parsing out the personal usage from the company usage turned out to be too time consuming for the lieutenant in charge, and the city ordered copies of text-messages to evaluate whether to increase the message plan.
The transcripts revealed long sexual exchanges between Quon and two women. Quon paid for the personal messages, but was reprimanded by his department. Quon sued for breach of privacy. The lower courts found that he had no reasonable expectation of privacy in the phone. Now, he's taken the case to the Supreme court on these issues:
Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;
Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. (Source, SCOTUS Wiki.)
An ISP's inspection of a company's communication system without notice likely violates the Stored Communications Act. Here, the Ninth Circuit Court of Appeals held that it did (issue not up for review here).
Preparing and applying use-policies for company owned equipment is vital. If one had been in place and applied properly, Quon's case never would have gotten this far.
Companies should ensure that only qualified individuals inform employees of use policies. The lieutenant should not have been in a position to modify the city's use policy here.
Contact me for a review of your "acceptable use" policy to make sure it covers email, pagers, smart phones, texting, mobile devices, and even use of Internet-based media.
