Employee’s Privacy Rights | Church Affiliates Exempt | Partial Actual Eviction

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Taxi Driver Had No Expectation of Privacy On The Job

Taxi Driver Had No Expectation of Privacy On The JobRecently, in Carniol v. N.Y. City Taxi and Limousine Com’n, a New York City taxicab driver brought an article 78 proceeding against the New York City Taxi and Limousine Commission (TLC) seeking an order restoring his taxi driver’s license and for damages. He claimed that he had a legitimate expectation of privacy in trip data gathered by a GPS device and the City agency’s use of that data to terminate him violated the Fourth Amendment of the U.S. Constitution and the State Constitution which prohibit illegal searches and seizures. In order to claim the protection of governmental illegal searches and seizures, a person must demonstrate that she personally has an expectation of privacy in the place searched, and that her expectation is reasonable. 2013 N.Y. Slip Op. 23358, 975 N.Y.S.2d 842 (Sup. Ct., N.Y. Cnty. 2013).

In this case, based upon the trip analysis of a GPS device installed in the taxicab, the TLC revoked the petitioner’s taxi driver’s license and imposed an $850 fine against him for overcharging his passengers.

We recently wrote about the Court of Appeals decision regarding a public employee’s workplace search through the surreptitious placement of a GPS device on the employee’s vehicle, tracking data while the driver took trips of a private nature during non-working hours (August 13, 2013 Newsletter – Big Brother: The Scope of Warrantless Workplace Searches). Unlike that case, here, the rules and regulations of the TLC require the installation of equipment that electronically transmit vehicle and trip information. This information includes the transmission of the taxicab’s and driver’s license numbers, the number of passengers, the starting and ending times and locations of the trip, the metered fare for the trip, and the trip distance.

The Court recognized that individuals who engage in work in a closely regulated industry “have reason to expect intrusions upon their privacy insofar as it pertains to the work.” It further noted that here, the GPS system “was installed with the knowledge of the taxicab owners and all taxicab drivers are required to follow TLC regulations which mandate the use of the [] system. Adults who choose to participate in a heavily regulated industry, such as the taxicab industry, have a diminished expectation of privacy, particularly in information related to the goals of the industry regulation.” The Court found that “the government interest in improving taxi customer service and TLC’s ability to regulate it by using modern methods to promote passenger and driver safety, is substantial.” “The purpose of the GPS is to gather information pertaining to the taxicab business. It is not designed or used to collect personal information about the driver. The data…collected are business records which the agency had the right to inspect without a warrant.”

Because the petitioner failed to demonstrate that he had a legitimate expectation of privacy in the information obtained as a result of the use of the GPS technology, or that the information was collected in derogation of his privacy rights under the State or Federal Constitutions, the petition was dismissed.

Church Affiliates Exempt From Birth Control Mandate

Church Affiliates Exempt From Birth Control MandateA Brooklyn Federal Court recently granted a permanent injunction that exempts nonprofit affiliates of the Roman Catholic Archdiocese of New York and the Roman Catholic Diocese of Rockville Centre from a requirement that they provide contraceptive care, among other things, through third parties. Roman Catholic Archdiocese of N.Y. v. Sebelius, 2013 WL 6579764, No. 12-CV-2542 (BMC) (E.D.N.Y. 2013).

The claims were brought under the Religious Freedom Restoration Act (“RFRA”) and the Administrative Procedures Act, as well as under the Establishment, Free Exercise, and Free Speech clauses of the First Amendment of the U.S. Constitution.

The plaintiffs included the Catholic Health Care System, Catholic Health Services of Long Island, Cardinal Spellman High School, and Monsignor Farrell High School. The Roman Catholic Archdiocese of New York and the Roman Catholic Diocese of Rockville Centre – both self-insured non-profit organizations – also sued, but as recognized by the Court, these organizations, unlike the schools and health systems, “are entirely exempt from the mandate as religious employers.”

In the decision, the Court succinctly outlined the issue before it. The Patient Protection and Affordable Care Act (the “ACA”) of 2010 requires that group health insurance plans cover certain preventative medical services without cost-sharing, such as a co-payment or a deductible. Pursuant to regulations subsequently issued, the preventative services that must be covered include contraception, sterilization, and related counseling (the “Mandate”). The Government identified two interests served by the Mandate: “the promotion of public health, and ensuring that women have equal access to health-care services.” The Government has recently promulgated regulations that seek to accommodate the religious objections of “eligible organizations,” namely religious non-profits, or affiliates of the exempt churches. Under this accommodation, “eligible organizations” do not have to pay for a health plan that covers contraceptive services; instead, an eligible organization must provide its issuer or third party administrator (“TPA”) with a self-certification form stating its objection to the Mandate on religious grounds. The issuer or TPA is then required to provide contraceptive coverage without charging the eligible organization any fees or premiums, and without imposing any cost-sharing on the beneficiary.

The plaintiffs argued that their Catholic beliefs prohibit them from providing, subsidizing, facilitating, or sponsoring the provision of contraception, sterilization, or abortion-inducing products and services. The Mandate, they argued, requires them to violate these core religious beliefs, regardless of the exemption for religious employers or the accommodation for eligible organizations. In their complaint, they alleged that the Mandate forces them to choose between violating the tenets of their religious faith or paying substantial penalties. In particular, if plaintiffs want to avoid the penalties for non-compliance with the Mandate, they must authorize a third party to engage in an activity, namely the provision of contraceptives, in which they themselves are religiously forbidden from engaging.

Under the RFRA the Government “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person–(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In this case, the Court reasoned that “[i]n order to prevail on their RFRA claim, plaintiffs must first demonstrate that the Mandate has placed a substantial burden on their sincerely held religious beliefs. Plaintiffs state that their religious beliefs prohibit them from ‘facilitating access to abortion-inducing products, contraception, sterilization, and related counseling.’” The Government “[did] not challenge the sincerity of this belief.” As for “substantial burden” (which is not defined in the regulations), the Court noted “three broad ways in which religious exercise may be substantially burdened. Government action may: (1) compel the plaintiff to do something that is inconsistent with his religious beliefs; (2) forbid the plaintiff from doing something that his religion motivates him to do; or (3) not directly compel a plaintiff to do something forbidden by his religious beliefs or to refrain from doing something motivated by those beliefs, but instead put substantial pressure on the plaintiff to do so.” The Court concluded that “[t]his case could be placed into the third category… if viewed as applying indirect pressure to force plaintiffs into a ‘Hobson’s choice’ between violating their religious beliefs and paying substantial fines. However, it seems that the first category is a better fit–the Mandate directly compels plaintiffs, through threat of onerous penalties, to undertake actions that their religion forbids.” Plaintiffs argued “that the Mandate requires them to act in two specific ways. First, in order to qualify as an” eligible organization,” plaintiffs must complete a self-certification form stating their religious objection, and provide that form to their TPA. They argue that completing this form authorizes the TPA to provide contraceptive coverage to plaintiff’s employees, thereby making the plaintiffs complicit in the scheme by which those employees receive contraception. Second, plaintiffs argued that although they previously sought to identify and contract with TPAs that would not provide contraceptive coverage to their employees, the Mandate would require them to identify and contract with TPAs that would do so. Both actions violate plaintiffs’ religious beliefs, which preclude them from ‘facilitating access to abortion-inducing products, contraception, sterilization, and related counseling.’”

The Court rejected the Government’s argument that “the burden placed on plaintiffs’ beliefs by the Mandate is too ‘de minimis’ or ‘attenuated’ to be substantial under the RFRA. The Court also concluded that the Government failed to demonstrate that the mandate “is the least restrictive means of furthering [a] compelling governmental interest.” Among other things, the Court held that the Government could not show a compelling interest in “uniform enforcement of the Mandate, for the simple reason that enforcement of the Mandate is currently anything but uniform. Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and ‘religious employers’ like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.”

In granting the permanent injunction, the Court reasoned that the plaintiffs demonstrated they will suffer irreparable injury absent an injunction. “The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” The Court concluded that “denying injunctive relief would force plaintiffs to choose between violating the stated religious beliefs and paying onerous financial penalties.”

No Partial Actual Eviction To Offset Rent

No Partial Actual Eviction To Offset RentRecently in a commercial nonpayment summary proceeding a final judgment for possession and a warrant of eviction were issued against the tenant, as well as a money judgment for over $69,000 for rent arrears. On appeal, the tenant claimed, among other things, that the rent claimed due was suspended by its defense of “partial actual eviction” during building renovations. Paris LIC Realty, LLC v. Vertex, LLC, 41 Misc.3d 145(A) (2d Dept. App. Term 2013).

The defense of actual or constructive eviction is a time honored defense to the non-payment of rent. The wrongful eviction of a tenant precludes recovery of rent until possession is restored. An actual eviction is the physical removal or exclusion of the tenant from the real property by the landlord.

A constructive eviction occurs where, although there has been no physical removal or exclusion of the tenant, a landlord’s wrongful act substantially and materially deprives the tenant of the beneficial use and enjoyment of the premises, so as to require the tenant to move out. The tenant must timely move out to claim constructive eviction. When actual ouster or untenantability is in relation to only a portion of demised premises, it normally calls for a cause of action by tenant for partial actual or constructive eviction. The different between the two is the suspension of all rent, although the tenant remains in possession of a portion in the case of partial actual eviction, and a pro rata abatement of rent in the case of a partial constructive eviction.

In this case, the Court found that the “[t]enant’s defense of partial actual eviction is based, in part, upon language in the lease describing the premises as ‘approximately 4000 feet on the third floor (including areas of the elevator and stairways)’ and its inability to use the elevator for extended periods of time during the building construction.” The Court recognized that “[t]enant specifically argues on appeal that this is not a matter of ingress egress, but a matter of being ousted from a part of the premises let under the lease.” It held that “[e]ven assuming that the elevator itself is part of the leased premises, tenant’s argument fails, as the lease also provides that there shall not be ‘any abatement or diminution of rent because of making of repairs, improvements or decoration to the demised premises after the date above fixed for the commencement of the term.’ Under these circumstances, tenant is not entitled to an abatement of rent based on its claim of partial actual eviction due to the unavailability of the elevator.” This broad exculpatory clause is in many commercial leases.

The tenant had further argued a partial actual eviction because of its inability to access two reserved parking spaces granted to it in its lease. The tenant claimed that “while the lease rider provides for ‘two reserved parking spaces in the basement for cars,’ parking was not accessible as a result of building construction and other activities engaged in by landlord.” However, because the lease did not identify the two specific parking spaces to which the tenant was entitled, the Court held that “tenant’s inability to access parking spaces is not a partial actual eviction.”

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