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Working it Out

Employers can require all workers to participate in daily group exercise, but companies should be wary of only placing such a mandate on only some employees, such as smokers or those who are overweight. The column this month also deals with the rights of organizations to search employee lockers.

Monday, July 12, 2010
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Question: Can an employer mandate employee participation in daily group-exercise activity? In other words, is it legal for an employer to require employees to participate in such activities? Some workers have intermittent health issues, such as asthma, which could be exacerbated by such activities. If we can require that employees participate in these activities, would a doctor's note advising against participation in strenuous activity be required if an employee does not want to participate?

Answer: Generally, yes -- employers can mandate daily exercise, with some limitations and they can require a doctor's note to excuse employees with health issues.

Absent an employment contract, most states adhere to the employment-at-will doctrine that permits employers to fire employees for any nondiscriminatory reason, without cause or notice, as well as unilaterally change the terms and conditions of employment. General Elec. Tech. Servs. Co. v. Clinton, 577 N.Y.S.2d 719, 720 (3d Dep't 1991), See e.g. Liberatore v. Melville Corp., 168 F.3d 1326, 1328 (D.C. Cir. 1999) (stating District of Columbia standard); Horn v. The New York Times, 100 N.Y.2d 85 (2003) (stating New York standard).

However, any termination or change in terms and conditions of employment can not be based on legally protected characteristics such as an applicant's age, race, sex, religion or disability. See e.g., 42 U.S.C. §§ 2000e et seq, 29 U.S.C. §§ 621-34; 42 U.S.C. §§ 12101 et seq.

It follows, then, that employers may mandate employee participation in daily exercise as a term and condition of employment, as long this policy does not unfairly disadvantage employees expressing a statutorily protected characteristic. With respect to required physical activity, the group most likely to be impacted is employees with disabilities.

Further, if daily group exercise is not an essential component of the job, but is made mandatory by the employer, the employer must excuse some employees from it or allow them to participate in a modified program (i.e., provide a reasonable accommodation) so as not to negatively impact employees who have physical limitations and disabilities and to avoid running afoul of the Americans with Disabilities Act.

 

Employers are only required to make reasonable accommodations, however, if they are aware that that the affected employee has a disability and physical limitation. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260 (1st Cir. 2001) (finding plaintiff failed to state a claim for discrimination under the ADA because she "never adequately put [employer] on notice of her disability and need for accommodation"); see also Miller v. National Casualty Co., 61 F.3d 627, 629 (8th Cir. 1995).

This knowledge element is usually satisfied when an employee notifies the employer of their disability and requests an accommodation. Submitting a doctor's note can provide sufficient notice to the employer of the employee's need for an accommodation. See Snead v. Metropolitan Property & Casualty Ins. Co., 237 F.3d 1080, 1089 (9th Cir. 2001); Ragin v. East Ramapo Central School Dist., 2010 WL 1326779, *20 (S.D.N.Y. Mar. 31, 2010).

Several courts have held that "disabled employees must make their employers aware of any nonobvious, medically necessary accommodation with corroborating evidence such as a doctor's note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA's reasonableness standard to provide a specific modest accommodation the employee requests." Ekstrand v. School Dist. of Somerset, 583 F.3d 972, 976 (7th Cir. 2009).

Moreover, courts have found that, by itself, an employee's notification to the employer of their limitations was not sufficient to constitute awareness of the disability, and pointed to lack of medical proof or a doctor's note in their analysis. Kinch v. Quest Diagnostics, Inc., 652 F.Supp. 2d 131, 135 (D. Mass. 2009) (holding that employer was not aware of disability just because the employee gave the employer a book about possible side effects of medication); Luna v. Walgreen Co., 575 F.Supp.2d 1326, 1336 (S.D. Fla. 2008) (finding that employer's general awareness of employee's back and knee problems was not sufficient notice to justify a reasonable accommodation); Thorn v. BAE Systems Hawaii Shipyards, Inc., 586 F.Supp.2d 1213, 1224-25 (D. Hawaii 2008) (holding that employee's complaints that his back was "really hurting" did not put employer on notice of his disability).

Therefore, it would follow that depending on the jurisdiction -- employers may require a doctor's note before excusing the employees from participating in mandatory group-exercise programs.

It is also worth mentioning a few points about employers' efforts to implement general "wellness plans" in the workplace.

The question does not make clear if the mandatory exercise would be required of every employee. If an employer seeks to require daily exercise only of certain types of employees, such as smokers, those with high blood pressure or overweight employees, the employer could expose themselves to liability.

When deciding how to implement an exercise program, or any other sort of health-minded program in the workplace, the Employee Retirement Income Security Act and the Health Insurance Portability and Accountability Act could be implicated, as they prohibit adverse employment actions based on the notion that the employee's behavior will lead to an expensive health issue (such as higher costs due to health problems). 29 U.S.C. § 1140 (2008); 26 C.F.R.§ 54.9802-1 (2008).

Additionally, at least one state prohibits employment discrimination based on weight, so forcing only overweight employees to participate could run afoul of the law. Mich. Comp. Laws. § 37.2102.

In general, if a company is considering instituting an exercise program, it should first consult with counsel. Instituting a voluntary plan that provide incentives, as opposed to penalties, is a safer option than instituting mandatory programs with penalties.  

 
Question: Is an employer permitted to require employees to give the company the combination or key to a company locker when the employee's own lock is used on the locker?

Answer: Yes, as long a clear policy is promulgated and followed.

Employees have a right to be free from unreasonable searches and seizures under the Fourth Amendment. However, because Fourth Amendment protection requires state action, its scope is typically limited to government employees, as private employers' actions rarely constitute state action. See Simmons v. Southwestern Bell Tele. Co., 452 F. Supp. 392 (D.C. Okla. 1978), aff'd 611 F.2d 342 (10th Cir. 1979).

For private employees, the common-law tort of invasion of privacy provides protection against unreasonable intrusion upon a person's seclusion or personal life, and creates a civil remedy for employees of private-sector employers.

While elements can vary from state to state, generally this cause of action requires: (1) an intentional intrusion into a private place, conversation, activity or matter (2) in a manner highly offensive to a reasonable person. Hilderman v, Enea Teksci, Inc., 551 F.Supp.2d 1183, 1203 (S.D. Cal. 2008) (stating the elements under Arizona and California law); Campbell v. Woodard Photographic, Inc., 433 F.Supp.2d 857, 861 (N.D. Ohio 2006) (stating that the second element as "outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities"); McLaren v. Microsoft Corp., 1999 WL 339015, *3 (Tex.App. May 28, 1999) (stating Texas standard).

However, employees can waive their constitutional and common-law right to privacy, either explicitly or implied. See Miller v. Blattner, 676 F.Supp.2d 485 (E.D. La. 2009); Lewis v. Dayton Hudson Corp., 339 N.W.2d 857 (Mich. Ct. App. 1983); Jeffers v. City of Seattle, 597 P.2d 899 (Wash. Ct. App. 1979). This can be done by consent of the employee, or through effective adaptation of an employer's policy.

The U.S. Supreme Court stated that "[p]ublic employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices, procedures, or by legitimate regulation. The employee's expectation of privacy must be assessed in the context of the employment relation." O'Connor v. Ortega, 480 U.S. 708, 717 (1987).

In the context of private employers, courts have held that an employees' expectation of privacy, and therefore the basis of the tort claim, can be almost entirely eliminated by employer regulations, rules and promulgated practices. See e.g. Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987) (holding that an employee's expectation of privacy in his desk and office was not reasonable because of the private-employer's tight security measures, constant surveillance, and regular searches).

Additionally, courts have recognized that employer's have an interest in areas and material that could otherwise be considered "personal" to the employee, such as personal information on computers and employer-provided space where personal items are kept. American Postal Workers Union v. United States Postal Service, 871 F.2d 556 (6th Cir. 1989) (holding that Postal Service employees, who acknowledged in writing that lockers were subject to inspection at any time by employer for any reason did not have reasonable expectation of privacy in lockers and expressly waived any Fourth Amendment rights in the assigned lockers); Hilderman v. Enea Teksci, Inc., 551 F.Supp.2d 1183 (S.D. Cal. 2008) (finding employer had interest in searching employee's computer containing personal email to look for unauthorized activity); Campbell v. Woodard Photographic, Inc., 433 F.Supp.2d 857, fn4 (N.D. Ohio 2006) ("Should [the employer] demonstrate it advised its employees that their computer activities on the office system were monitored, then [employee] had no reasonable expectation of privacy in records he accessed through [employer's] server"); Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. App. Div. 2001) (holding that employee's privacy interest in his workplace computer did not trump his employer's right to monitor employee's use of the computer).

In United States v. Barrows, 481 F.3d 1246 (10th Cir. 2007), the 10th Circuit Court of Appeals examined an alleged Fourth Amendment violation. The defendant was charged with several child-pornography crimes. The relevant evidence was discovered on his personal computer, which he also used for business purposes. The court noted that, with respect to its impact on Fourth Amendment analysis, "the significance of personal ownership is particularly weakened when the item in question is being used for business purposes." 481 F.3d at 1248.

Ultimately, the court found that there was no Fourth Amendment violation, and the search of the defendant's computer was legal.

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While this case reviewed the legality of a search in a criminal proceeding, it is relevant because of the distinction courts make between purely personal items and items used for both personal and business purposes.

It is reasonable to conclude that courts would consider a private lock on an employer-provided locker to warrant even a lower privacy interest than a personal, privately-owned computer used in the workplace. In addition to having a lower expectation of privacy by nature of their use, both items would be subject to workplace policies, which could further lower their privacy interest.

Courts seem to accept, without directly citing a proposition of law, that employers have the right to promulgate policies and procedures, as a condition of using lockers, computers or other work-related items, that effectively waive any claim of invasion of privacy, as long as the employer's conduct does not exceed the scope of the policy. For example, with respect to government employees, in American Postal Workers Union v. USPS, 871 F.2d 556 (6th Cir. 1989), the Sixth Circuit Court of Appeals found that an employer's policy of locker inspections negated and waived any claim by employees alleging a violation of the Fourth Amendment.

The employer's policy stated that the "[l]ocker is subject to inspection at any time by authorized personnel." American Postal Workers, 871 F.2d at 557.

The employees alleged that, despite the policy, they still had an expectation of privacy in their lockers because there had not been any large-scale locker searches or announcement preceding the search. The court, however, found that the employees had no expectation of privacy in the lockers because "the postal service had been expressly authorized to conduct locker inspections at any time, thus reserving the right to do so on a random basis.

The failure of the postal service to implement this particular authority in the past did not negate the explicit provisions of the grant." Id. at 560-561. See also Miller v. Blattner, 676 F.Supp.2d 485, 497 (E.D. La. 2009) ("Where, as here, an employer has a rule prohibiting personal computer use and a published policy that emails on [employer]'s computers were the property of [employer], an employee cannot reasonably expect privacy in their prohibited communications"); Thygeson v. U.S. Bancorp, 2004 WL 2066746 (D. Or. Sept. 15, 2004) (finding that an employee did not have a reasonable expectation of privacy in folders marked "personal" on his employer-provided computer because, in part, the Employee Handbook stated that personal use of the computer was prohibited and monitored).

There is one case that does discuss employee-provided locks on employer-provided lockers, but only after the employer searched the locker without previously retaining a key to the lock. In K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex. Ct. App. 1984) the defendant-employer provided lockers to its employees for storage of personal items during work hours.

Upon request, the employer would provide locks to the employees, and would keep a master key or a record of the combination. The employer also allowed the employees to use personal locks on the lockers, and did not require that they turn over copies of the key or combination. There was no written policy concerning locker searches in place.

With the employer's knowledge, the plaintiff used her own lock on one of the lockers. The plaintiff sued the employer for invasion of privacy under Texas common law after the employer searched her locker.

While, ultimately, the court found this constituted a violation of the employee's right to privacy, the court noted: "The lockers undisputably [sic] were the [defendant]'s property, and in their unlocked state, a jury could reasonably infer that those lockers were subject to legitimate, reasonable searches by the appellants. This would also be true where the employee used a lock provided by the appellants, because in retaining the lock's combination or master key, it could be inferred that the appellants manifested an interest both in maintaining control over the locker and in conducting legitimate, reasonable searches." 677 S.W.2d at 637.

The court concluded that unlocked lockers and lockers secured by an employer-provided lock would normally be subject to legal searches by the employer. However, in ruling against the employer, the court relied upon the fact that employer did not retain a copy of a key to the lock.

If the employer had retained a copy of the key or combination, the court would likely have found that the employers manifested "control" over the lockers, and therefore, would have had a right to subject the locker to a legal search.

What these cases show us is that courts generally view employees' personal items used in a business context as being less deserving of a privacy interest. Barrows, 481 F.3d 1246. And, as discussed above, the U.S. Supreme Court stated that employers can further reduce employees' expectation of privacy "by virtue of actual office practices, procedures or by legitimate regulation." O'Connor, 480 U.S. at 717.

In light of this language, it seems clear that an employer can require employees to turn over copies of keys and combinations to personal locks if such a requirement is stated in the employer's workplace policy. If the employee does not comply, the employer may simply disallow use of personal locks, and thereby retain the ability to search the unlocked lockers.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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