If your assignment is aWriting(instead of a case), you doNOTsubmit this in"Brief"but simplysummarizethe writing in your textbook.

Chapter 4 - Privacy: Technology, Surveillance, & Freedom

Lifestyle Control and Wal-Mart Case p. 140 -144

Lifestyle Control

If you have something that you don't want anyone to know maybe you shouldn't be doing it in the first place.

Eric Schmidt, CEO Google

During the early phase of the industrial revolution, it was not unusual for "company towns" to be built, communities where a single company constructed, owned, and operated the entire townnot only the business enterprise itself, but also the stores, roads, parks, recreational and medical facilities, and homes for the workers. Firms would also pay for services normally provided by government, such as sewage treatment and garbage collection. In the mid-1800s, company towns were created out of self-interest, in often-remote locations where relatively dangerous operations in coal mining, timber, or construction required a stable workforce. With the many amenities came pervasive social control.Drinking, gambling, smoking, cleanliness, and morals were tightly regulated. Employees were closely watched in public and inprivate, andwere fired for "straying from the path of virtue."They could also be disciplined for minor infringements: Frank Gilchrist, the entrepreneur who built Gilchrist, Oregon, "drove around town, upbraiding those whose yards weren't clean and tidy."One mill owner would walk around the workers' houses at 9:00 pm every night, knocking on doors to hurry people to turn off their lights and go to bed.

When he opened up his assembly line in the early twentieth century, Henry Ford issued a booklet, calledHelpful Hints and Advice to Employees,warning against drinking, gambling, borrowing money, taking in boarders, and poor hygiene (advising workers to "use plenty of soap and water in the home and upon their children, bathing frequently"). Ford deployed a vast "Sociology Department," with 150 door-to-door investigators to check the conduct of workers who were not living in houses or shopping in stores that Ford built, but whose well-being was of great interest to the entrepreneur. Once Ford instituted the famous $5 a day wage, he worried that workers would splurge their windfall; his goal was to maintain maximum productivity at the factory by keeping them healthy and stable. The company established a savings and loan to encouragethrift, andhad doctors available at all times for workers and their families.

Today we find such a story quaint. We might believe we have reached some sort of societal consensus that what employees do on their own time, away from the workplace, should be entirely their own business. Yet we see in the twenty-first century a wave of corporate efforts to control employees' off-site, off-duty conduct. Rather than paternalism, this is often driven by the hard facts surrounding health care in the United States. Expenses are skyrocketing, and employers carry many of them. Escalating insurance costs as well as lost productivity are affecting global competitiveness: Average health care costs to U.S. companies are 13 percent of total payroll, while countries like Germany, Japan, or the United Kingdom spend half that proportion. In 2015, corporate spending on health care in the United States averaged more than $12,500 per employee per year. (Employees contribute an average of $5,000 to those premiums.)

Obesity and smoking, for example, are major causes of poor health in the United States. Studies from 2014 reveal the enormous costs to U.S. employers associated with obesity. They lose an estimated $8.65 billion annually in lower productivity because of employees' higher absentee rates.And while normal-weight employees cost on average $3,830 per year in medical, sick day, short-term disability, and workers' compensation claims combined, obese workersclaimscost more than twice that amount, or $8,067.Each employee who smokes costs the employer almost $6,000 more per year than a nonsmoker, according to a 2013 study. The biggest expense$3,077was due to smoking breaks, which averaged five a day. Smokers tend to suffer more from heart and lung disease, and from various cancers; their healthcare expenses were the second highest cost to employers, at $2,056 per year. The remaining costs were related to higher absenteeism.Consider what smokers' higher healthcare costs mean for a company like Walmart, with 2.2 million workers. Since the percentage of adults who smoke in the United States stands now at 16.8 percent, if we assume that some 37,000 Walmart employees smoke, their extra healthcare expenses amount to $76 million each year.

Walmart is not well-known for offering its employees comprehensive, affordable health insurance, but firms that do have tried to curb their expenses witha number ofstrategies. Many have switched to plans with higherdeductibles, orhave changed work classifications to employ more people part-time, making them ineligible for coverage. In a recent trend, employers have been setting up corporate wellness programs. These typically consist of health-risk assessment questionnaires, and biometric screenings, checks of blood pressure, cholesterol levels, body mass index, and the like. Sometimes they include smoking cessation or weight loss support. About half the large firms with wellness program offer financial incentives to participate. IBM, for example, offers a range of rebates, and employees who agree to exercise, to eat healthy, and not to smoke are paid up to $800 per year$1,600 if their family follows suit.

Some employers find that penalties work better than rewards. Michelin North America, for example, had been giving its employees $600 credits toward deductibles if they participated in wellness programs, but when health care costs spiked in 2012, they changed their policy. As of 2014, if you work for Michelin North America and your blood pressure is too high or your waist measures more than 40 inches, you could pay as much as $1,000 more per year for health insurance.Under the 2014 Affordable Care Act, the maximum penalties employers can levy for not participating in a wellness plan is 30 percent of the total cost of an employee's health insurance. If tobacco cessation is included, the penalty can rise to 50 percent. As of 2015, a family's coverage cost on average $17,545, so an employer could charge up to $5,264 more or 30 percent annuallyfor not filling in a health assessment questionnaire, or for not completing a biometric screening.

Scotts employees take a long, extremely personal health-risk assessment, which asks, for instance, "Do you smoke? Drink? What did your parents die of? Do you feel down, sad, hopeless? Burned out? How is your relationship with your spouse? Your kids?" If they refuse to take the test, employees pay added premium costs each month.Weyco, aMichigan-based, health-benefits management company, not only refuses to hire smokers but also fires every employee who fails the mandatory nicotine test; Weyco expanded this program to include workers' spouses; if the spouse fails the monthly nicotine test, the worker pays $80 monthly until the spouse quits. Policies like these have been aimed at a range of behaviors: One Georgia developer will not employ anyone who engages in "high-risk" recreational activities such as motorcycling or skydiving.

Some employee lifestyle restrictions are not created for healthreasons, butare mainly for branding. At the Borgata Casino in Atlantic City, New Jersey, for example, bartenders and waitresses can be fired if they gain more than 7 percent of their body weight. Weigh-ins are mandatory and random, with 90-day unpaid suspensions for violators. "Borgata Babes" who miss their target weight after 90 days are fired. Borgata's policy requires them to carry free drinks while smiling, and to wear tight corsets, stockings, and high heels. They are featured, along with provocative promotional videos, on Borgata's top-selling calendar. In 2016, the Supreme Court of New Jersey let stand a lower court ruling that these rules for casino employees were not discriminatory.

Organizations such as the American Civil Liberties Union (ACLU) are troubled by this drift to control off-site behavior. Former ACLU president Ira Glasser has said:

If an employer believes your capacity to take care of yourself is in his interest, then you become like a piece of equipment. He gets to lock it up at night and control the temperature and make sure dust doesn't get into the machine, because what happens when it's not working affects how long it's going to last.

In fact, an interesting alliance between the ACLU and the tobacco industry was extremely effective in lobbying state legislatures for laws that protect employees who smoke when they are not at work.Today,a majority ofstates have some version of off-the-job privacy protection laws. In New York, for instance, it is illegal to fire an employee for engaging in off-hours sports, games, hobbies, exercise, reading, movie-, or TV-watching. This is the statute at issue in the next case.

State of New York v. Walmart Stores, Inc.

N.Y. App. Div., 1995 621 N.Y.S.2d 158

Laurel Allen wasmarried, butseparated from her husband when she began dating Samuel Johnson, a coworker at Walmart. When the store manager found out, they were both fired. Walmart'santifraternizationpolicy prohibited such relationships as inconsistent with the company's "strongly held belief in and support of the family unit." The New York attorney general entered the case on behalf of the dating couple, alleging that firing them violated the state law protecting the employees' right to engage in off-duty, off-premises recreational activity.

Mercure, Justice

In February 1993, defendant discharged two of its employees for violating its "fraternization" policy, which is codified in defendant's 1989 Associates Handbook and prohibits a "dating relationship" between a married employee and another employee, other than his or her own spouse. In this action, plaintiff seeks reinstatement of the two employees with back pay upon the ground that their discharge violated [New York] Labor Law 201-d(2)(c), which forbids employer discrimination against employees because of their participation in "legal recreational activities" pursued outside of work hours....

[The court must decide whether "a dating relationship" is meant to be included within the statutory definition of "recreational activities."]

[NY] Labor Law 201-d(1)(b) defines "recreational activities" as meaning:

... any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading, and the viewing of television, movies, and similar material.

In our view, there is no justification for proceeding beyond the fundamental rule of construction that "[w]here words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation," ... To us, "dating" is entirely distinct from and, in fact, bears little resemblance to "recreational activity." Whether characterized as a relationship or an activity, an indispensable element of "dating," in fact its raisond'etre, is romance, either pursued or realized. For that reason, although a dating couple may go bowling and under the circumstances call that activity a "date," when two individuals lacking amorous interest in one another go bowling or engage in any other kind of "legal recreational activity," they are not "dating."

Moreover, even if [NY] Labor Law 201-d(1)(b) was found to contain some ambiguity, application of the rules of statutory construction does not support [the trial court's] interpretation. We agree with defendant that ... the voluminous legislative history to the enactment, including memoranda issued in connection with the veto of two earlier more expansive bills, [shows] an obvious intent to limit the statutory protection to certain clearly defined categories of leisure-time activities. Further, in view of the specific inclusion of "sports, games, hobbies, exercise, reading, and the viewing of television, movies, and similar material" within the statutory definition of "recreational activities,"... personal relationships fall outside the scope of legislative intent....

Dissenting: Yesawich, Justice

...I do not agree that "dating," whether or not it involves romantic attachment, falls outside the general definition of "recreational activities" found in [the law]. The statute, by its terms, appears to encompass social activities,whether or notthey have a romantic element, for it includes any lawful activity pursued for recreational purposes and undertaken during leisure time. Though no explicit definition of "recreational purposes" is contained in the statute, "recreation" is, in the words of one dictionary, "a means of refreshment or diversion" (Webster's Ninth New Collegiate Dictionary, 985 [1985]); social interaction surely qualifies as a "diversion."...

In my view, given the fact that the Legislature's primary intent in enacting Labor Law 201-d was to curtail employers' ability to discriminate on the basis of activities that are pursued outside of work hours, and that have no bearing on one's ability to perform one's job, and concomitantly to guarantee employees a certain degree of freedom to conduct their lives as they please during nonworkinghours, the narrow interpretation adopted by the majority is indefensible. Rather, the statute, and the term "recreational activities" in particular, shouldbe construed as broadly as the definitional language allows, toeffectits remedial purpose.... Here, the list, which includes vast categories such as "hobbies" and "sports," as well as very different types of activities (e.g., exercise, reading), appears to have been compiled with an eye toward extending the reach of the statute. This, coupled with the explicit directive that the definition is not to be limited to the examples given, provides further indication that the term "recreational activities" should be construed expansively.