Constitutional Law

5th Circuit: Gov't. Must Notify Workers of Fridge Cleaning


Weighing in on an important workplace issue that has undoubtedly vexed many an employee nationwide, the New Orleans-based 5th U.S. Circuit Court of Appeals has reportedly rendered an opinion that determines the constitutionality of government office refrigerator cleaning.

No longer can a government employer simply clean out the office refrigerator when it becomes too grungy, smelly or crowded with inedible leftovers left by office workers, according to the Houston Chronicle. Instead, due process mandates that employees must be given advance notice of the planned refrigerator raid, so that they have an opportunity to remove anything of value to them.

In fact, it was more than a mere loss of lunchmeat or expired one-serving yogurt containers that focused the federal appellate court’s attention on this weighty workplace issue. The case came to the appeals court because of a dispute between the University of Texas at San Antonio and one of its tenured faculty members, chemistry professor Philip Stotter.

Pressured to clean up his allegedly super-messy office and lab, the prof reportedly procrastinated a bit too long. Although the university sent him a certified letter telling him to clean up or else, it didn’t arrive until several days after the U of T’s workers had already done the job themselves, apparently discarding his books and papers. Stotter then made a federal case out of the matter, which also involves other workplace issues.

Writing generally about personal property kept by government employees in the workplace, the appeals court says in a Nov. 5 opinion that the university’s failure to provide advance notice of the planned office sweep posed a big constitutional problem. “Dr. Stotter did not receive the notice until after his personal property was allegedly discarded,” the opinion points out. Hence, “a reasonable state official would understand that discarding Dr. Stotter’s personal property in this manner violated his procedural due process rights and that such conduct is objectively unreasonable.”

As is commonly the case, the 5th Circuit’s decision leaves open for legal interpretation exactly how it should be applied in future disputes. However, several local practitioners not involved in the case are already considering the issues it raises and and stand ready to advise potential clients seeking an interpretation of court-ordered refrigerator etiquette, according to the newspaper.

“For example, is the receptionist’s week-old tuna sandwich considered personal ‘property’ under the due process clause of the Constitution?” muses Michael Muskat, an employment lawyer. “Does the answer change if the sandwich was shared among employees? What if there is evidence that the receptionist didn’t really like the tuna in the first place?”

Once they are up on the case themselves, too, practitioners may also need to notify clients of the new government refrigerator-cleaning rules.

“When we think of the due process right to ‘notice,’ we usually think in terms of whether a penal statute tells what us what we’re doing is wrong or whether the judge can throw us back in jail because we violated a condition of our bond,” says attorney Brian Wice, who specializes in criminal appeals.

“But the 5th Circuit, a federal appellate court that ordinarily devotes its time to more august matters like death penalty appeals and cutting-edge civil appeals, has … put all of those Felix Unger-types on notice,” Wice recounts, referring to the famous neatnik driven almost to distraction by his horrendously messy roommate in Neil Simon’s play The Odd Couple. “Thou shall not toss out our stuff unless you have first given us a ‘reasonable’ form of notice.”

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