| Employer May Be Required To
Pay For Employee Time Changing
Into Employer's Uniform
BALLARIS v. WACKER SILTRONIC CORP. 370 F. 3d 901
Michael Ballaris sued Wacker Siltronic Corporation, a manufacturer of silicon wafers for the
computer industry, to recover unpaid overtime wages under FLSA. One of the causes of action
involved recovery for time spent by employees changing into and out of plant uniforms at the work-site. The district court held that the time spent changing into and out of plant uniforms was not
compensable work time.
The United States Court of Appeals, Ninth Circuit reversed in part and remanded for a determination
of the amount of unpaid wages due to plaintiffs for time spent putting on and taking off plant
uniforms, and other related matters.
The Ninth Circuit noted that "while the Portal-to-Portal Act excluded 'ordinary' clothes-changing
from compensable time, other clothes-changing that was not 'merely a convenience to the employee'
and that was 'directly related to the specific work' remained compensable." Moreover, the Court
pointed out, "preliminary and postliminary activities remain compensable so long as 'those activities
are an integral and indispensable part of the principal activities.'" (Mitchell v. King Packing Co., 350
U.S. 260, 262-63 (1956)). The Ninth Circuit noted that 29 C.F.R. § 790.8(c) provides:
"Among the activities included as an integral part of a principal activity are those
closely related activities which are indispensable to its performance, If an employee
in a chemical plant, for example, cannot perform his principal activities without
putting on certain clothes, changing clothes on the employer's premises at the
beginning and end of the workday would be an integral part of the employee's
principal activity."
The Court found that because other employees were not required to wear uniforms did not change
it's analysis. Because the company determined that certain employees must wear uniforms daily,
must put them on and take them off on the plant premises, and adopted that rule in order to improve
overall business performance and to provide additional protection in its manufacturing process, it
made the activities integral and indispensable to the job. (29 C.F.R. § 790.8(c) n.65.)
The Court concluded that the district court erred in finding that the time spent changing into and out
of the uniforms on the company's premises was not "work" time under the FLSA.
How does this affect your agency? This case will require the agency legal advisor to review
department policy regarding not only where an employee "dresses out" for duty, but also restrictions
on employee activities if he/she chooses to "dress out" at home. If the employer does not require the
employee to change into a uniform at the work site, this case has no impact.
Denial Of Wrongdoing During IA
Does Not Start New Statute of Limitations
For Discipline Under POBRA
ALAMEIDA, Jr. As Director v. STATE PERSONNEL BOARD 108 Cal. App. 4th 788
Nathan A. Lomeli allegedly committed sexual offenses on September 18, 1998, and lied about them
by falsely denying them in an interview conducted by the California Department of Corrections
(CDC), after the DA dropped criminal charges for lack of evidence. CDC sought to dismiss Lomeli,
from his position as a correctional officer, for immorality, discourteous treatment of the public,
failure of good behavior, and dishonesty during interviews investigating these charges.
Lomeli opposed the adverse action and an administrative hearing was held. The ALJ proposed
revocation of the discipline and dismissal of the charges on the ground that the November 15, 2000
Notice of Adverse Acton was not timely served within the one-year limitations period of GC 3304
(d). Although the November 15, 2000 Notice of Adverse Action was served less than one year after
Lomeli's alleged dishonesty in denying the sex offenses, during the investigatory interview on July
12, 2000, the ALJ determined the dishonesty charge could not survive as a separate basis for
discipline because it flowed directly from the investigation of the September 1998 sex offenses. It
would defeat the purpose of POBRA to allow the employer to circumvent the one-year limitations
period by allowing the agency to prove the underlying charges, in order to demonstrate the employee
was dishonest in denying the charges.
The State Personnel Board (SPB) adopted the ALJ's decision and ordered CDC to reinstate Lomeli.
The trial court rejected CDC's attempt to reverse the SPB's decision. The California Court of
Appeal, Third Appellate District (Sacramento) affirmed, concluding that the alleged dishonesty in
denying an underlying charge did not start a new limitations period for discipline of peace officers
under the POBRA. The Appellate Court also rejected CDC's argument that GC § 3309.5 gave a trial
court exclusive jurisdiction over challenges to violations of POBRA statute of limitations.
The Court of Appeal noted that CDC did not explain how GC § 3304(g)(2)(B) applied, inasmuch
as it failed to show it "reopened" any investigation. Moreover, the court pointed out, the statute
speaks of newly-discovered evidence. Lomeli's denial of the sexual assault was not evidence of the
sexual assault, nor was the denial newly-discovered evidence of dishonesty.
The Court of Appeal disagreed with CDC's argument that the distinction between coerced and
voluntary statements made no difference, citing Lybarger v. City of Los Angeles (1985) 40 Cal.3d
827. The court stated that it was unseemly to force a person to answer an allegation of misconduct
and then punish him for denying the allegation, stating, at footnote #10, that the only dishonesty at
issue here was the denial of the underlying charged misconduct, and it had no need to address other
forms of dishonesty.
The Court of Appeal agreed with the ALJ, and the trial court, that the denial of these circumstances
does not constitute separate actionable misconduct but in effect merges with or is derivative of the
alleged underlying misconduct.
How does this affect your agency? Employees will continue to be held responsible when they are
intentionally dishonest. An employee's denial, however, of the underlying charges of an investigation
during his/her interview, will not start a new, or extend the current, one-year limitation period for the
agency. In this instance CDC attempted to circumvent the statute when it found that the statute of
limitations bared it from taking disciplinary action against the employee for the underlying incidents
of immorality, discourteous treatment and failure of good behavior. Departments must always keep
in mind that the "date upon which an administrative agency discovers misconduct is a question of
fact, as is the reasonable-diligence with which the person authorized to initiate the investigation into
misconduct acted." (Haney v. City of Los Angeles (2003) 109 Cal.App.4th 1). "The person in section
3304, subdivision (d) who is authorized to initiate an investigation of the allegation of an act,
omission, or other misconduct," is a supervisor in the police department. (Jackson v. City of Los
Angeles, (2003) 111 Cal.App.4th 899).
Failure To Mirandize Does Not
Require Suppression Of Physical Fruits
Of Suspects Unwarned But Voluntary Statements
U.S. v. PATANE 124 S. Ct. 2620
After Officer Fox began to investigate Patane's violation of a temporary restraining order, a federal
agent told Fox's colleague, Detective Benner, that Patane, a convicted felon, illegally possessed a
pistol. Officer Fox and Detective Benner proceeded to Patane's home where Fox arrested Patane for
violating the restraining order. Detective Benner attempted to advise Patane of his rights, but Patane
interrupted, asserting that he knew his rights. Detective Benner then asked about the pistol, retrieved
it and seized it.
Patane was indicted for possession of a firearm by a convicted felon. The District Court granted
Patane's motion to suppress, reasoning that the officers lacked probable cause to arrest him, and
declined to rule on his alternative argument that the gun should be suppressed as the fruit of an
unwarned statement. The Tenth Circuit reversed the probable-cause ruling, but affirmed the
suppression order on Patane's alternative theory.
The United States Supreme Court (5-4) reversed and remanded, concluding that a failure to give a
suspect Miranda warnings does not require suppression of the physical fruits of the suspect's
unwarned, but voluntary, statements.
The Supreme Court noted that the Miranda rule was a prophylactic, employed to protect against
violations of the self-incrimination clause of the U.S. Constitution (Fifth Amendment).The Court
pointed out that a mere failure to give Miranda warnings does not, by itself, violate a suspect's
constitutional rights. Potential violations occur, if at all, only upon the admission of unwarned
statements into evidence. At that point, the exclusion of such statements is a complete and sufficient
remedy for any perceived Miranda violation. However, the Supreme Court noted that introduction
of the non-testimonial fruit of a voluntary statement, such as Patane's pistol, did not implicate the
self-incrimination clause.
How does this affect your agency? Under the circumstances of this case, a custodial situation, the
officers acted reasonably when Det. Benner attempted to give the arrestee (parolee) his rights, only
to be interrupted and informed by the arrestee that he knew his rights. Due to the complexity of many
decisions involving Miranda warnings, officers should regularly discuss potential situations with the
District Attorney's Office or their agency's legal advisor.
Failure To Mirandize Before Custodial
Questioning Results In Exclusion of
Any Statements Obtained
MISSOURI v. SEIBERT 538 U.S. 1031
Seibert feared charges of neglect when her son, afflicted with cerebral palsy died in his sleep. She
was present when two of her sons and their friends discussed burning her family's mobile home to
conceal the circumstances of her son's death.
Donald, an unrelated mentally ill 18-year old living with the family, was left to die in the fire, in
order to avoid the appearance that Seibert's son had been unattended. Five days later, the police
arrested Seibert, but did not read her rights under Miranda. At the police station, Officer Hanrahan
questioned Seibert for 30 to 40 minutes, obtaining a confession that the plan was for Donald to die
in the fire. Officer Hanrahan then gave Seibert a 20-minute break, returned and gave her Miranda
warnings, and obtained a signed waiver.
Officer Hanrahan resumed questioning, confronting Seibert with her pre-warning statements and
getting her to repeat the information. Seibert moved to suppress both her pre-warning and post-warning statement.
Officer Hanrahan testified that he made a conscious decision to withhold Miranda warnings,
question first, then give the warnings, and then repeat the question until he got the answer previously
given. The District Court suppressed the pre-warning statement but admitted the post-warning one,
and Seibert was convicted of second-degree murder. The Missouri Court of Appeals affirmed. The
Missouri Supreme Court reversed, holding that because the interrogation was nearly continuous, the
second statement, which was clearly the product of the invalid first statement, should be suppressed.
The United States Supreme Court (5-4) affirmed concluding that, because the midstream recitation
of warnings after interrogation and an un-warned confession could not comply with Miranda's
constitutional warning requirement, Seibert's post-warning statements were inadmissible.
The Supreme Court pointed out that failure to give Miranda warnings and obtain a waiver of rights
before custodial questioning generally requires exclusion of any statements obtained. Conversely,
giving the warnings and getting a waiver generally produces a virtual ticket of admissibility.
The Supreme Court observed that when a confession so obtained is offered and challenged, attention
must be paid to the conflicting objects of Miranda and the question-first strategy. Miranda addressed
"interrogation practices ... likely ... to disable [an individual] from making a free and rational choice"
about speaking, and held that a suspect must be "adequately and effectively" advised of the choice
the Constitution guarantees. The question-first object, however, is to render Miranda warnings
ineffective by waiting to give them until after the suspect has already confessed.
The Supreme Court stated that "by any objective measure it is likely that warnings withheld until
after interrogation and confession will be ineffective in preparing a suspect for successive
interrogation, close in time and similar in content. The manifest purpose of question-first is to get
a confession the suspect would not make if he understood his rights at the outset. When the warnings
are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and
'deprive a defendant of knowledge essential to his ability to understand the nature of his rights and
the consequences of abandoning them.'"
Justice Kennedy concluded that "when a two-step interrogation technique is used, post-warning
statements related to pre-warning statements must be excluded unless curative measures are taken
before the post-warning statement is made. ... That the interrogating officer relied on respondent's
prewarning statement to obtain the postwarning one used at trial shows the temptations for abuse
inherent in the two-step technique."
How does this affect your agency? It should be noted that Seibert was under arrest, in custody,
unable to leave and subjected to questions without being afforded Miranda rights. Where a deliberate
two-step strategy is employed the Supreme Court requires the post-warning statements be excluded
unless curative measures are taken before they were made. Such measures should be designed to
ensure that a reasonable person in the suspect's situation would understand the import and effect of
the Miranda warning and waiver. The Supreme Court used as an example that a substantial break in
time and circumstances between the pre-warning statement and the warning might suffice in most
instances, as would an additional warning explaining the likely inadmissibility of the pre-warning
statement. It is strongly recommended that when an individual is in custody, not free to leave, or
faced with circumstances that would make a reasonable person believe they were under arrest, the
officer should consult with the District Attorney's Office before a two-step interrogation is
undertaken.
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