The Secretary of Labor (Secretary) is authorized by § 11(a) of
the Fair Labor Standards Act of 1938 (FLSA) to investigate and
gather data regarding wages, hours, and other conditions of
employment to determine whether an employer is violating the Act,
and by § 9 to subpoena witnesses and documentary evidence relating
to any matter under investigation. Pursuant to these provisions, a
Department of Labor official, upon entering appellee motel and
restaurant, served an administrative subpoena
duces tecum
on one of appellee's employees, directing the employee to appear at
the regional Wage and Hour Office with certain payroll and sales
records. Appellee refused to comply with the subpoena and sought
declaratory and injunctive relief in Federal District Court,
claiming that the subpoena constituted an unlawful search and
seizure in violation of the Fourth Amendment. The District Court
held that, although the Secretary had complied with the applicable
FLSA provisions in issuing the subpoena, enforcement of the
subpoena would violate the Fourth Amendment because the Secretary
had not previously obtained a judicial warrant.
Held: The subpoena
duces tecum did not violate
the Fourth Amendment.
Oklahoma Press Publishing Co. v.
Walling, 327 U. S. 186,
controlling. An entry into the public lobby of a motel and
restaurant for the purpose of serving an administrative subpoena is
not the sort of governmental act that is forbidden by that
Amendment. Here, the subpoena itself did not authorize either entry
or inspection of appellee's premises, but merely directed appellee
to produce certain wage and hour records, and no nonconsensual
entry into areas not open to the public was made.
Marshall v.
Barlow's, Inc., 436 U. S. 307, and
Camara v. Municipal Court, 387 U.
S. 523, distinguished. While a subpoenaed employer, in
an action in federal district court, may question the
reasonableness of a subpoena before suffering any penalties for
refusing to comply with it, the available defenses do not include
the right to insist upon a judicial warrant as a condition
precedent to a valid subpoena. Pp.
464 U. S.
413-416.
Reversed.
REHNQUIST J., delivered the opinion for a unanimous Court.
Page 464 U. S. 409
JUSTICE REHNQUIST delivered the opinion of the Court.
Section 11(a) of the Fair Labor Standards Act of 1938 (FLSA or
Act), 52 Stat. 1066, 29 U.S.C. § 211(a), authorizes the Secretary
of Labor to investigate and gather data regarding wages, hours, and
other conditions of employment to determine whether an employer is
violating the Act. [
Footnote 1]
Section
Page 464 U. S. 410
9 of the FLSA, 29 U.S.C. § 209, empowers the Secretary of Labor
to subpoena witnesses and documentary evidence relating to any
matter under investigation. [
Footnote 2] Pursuant to those provisions, an official of
the Department of Labor served an administrative subpoena
duces
tecum on an employee of appellee Lone Steer, Inc., a motel and
restaurant located in Steele, N.D. The subpoena directed an officer
or agent of appellee with personal knowledge of appellee's records
to appear at the Wage and Hour Division of the United States
Department of Labor in Bismarck, N.D., and
Page 464 U. S. 411
to produce certain payroll and sales records. In an action filed
by appellee to challenge the validity of the subpoena, the District
Court for the District of North Dakota held that, although the
Secretary of Labor had complied with the applicable provisions of
the FLSA in issuing the subpoena, enforcement of the subpoena would
violate the Fourth Amendment of the United States Constitution
because the Secretary had not previously obtained a judicial
warrant. We noted probable jurisdiction of the Secretary's appeal,
462 U.S. 1105 (1983), and we now reverse the judgment of the
District Court.
On January 6, 1982, Al Godes, a Compliance Officer with the Wage
and Hour Division of the Department of Labor, telephoned Susanne
White, appellee's manager, to inform her that he intended to begin
an investigation of appellee the following morning, and to request
that she have available for inspection payroll records for all
employees for the past two years. White telephoned Godes later that
day to inform him that it would not be convenient to conduct the
inspection on the following morning. After some preliminary
skirmishing between the parties, during which appellee inquired
about the scope and reason for the proposed investigation and
appellants declined to provide specific information, Godes and
Gerald Hill, Assistant Area Director from the Wage and Hour
Division in Denver, arrived at appellee's premises on February 2,
1982, for the purpose of conducting the investigation. After
waiting for White, Godes served the administrative subpoena at
issue here on one of appellee's other employees. The subpoena was
directed to any employee of appellee having custody and personal
knowledge of the records specifically described therein, records
which appellee was required by law to maintain.
See 29 CFR
§§ 516.2(a), 516.5(c) (1983). The subpoena directed the employee to
appear with those records at the Wage and Hour Division of the
Department of Labor in Bismarck, N.D.
Page 464 U. S. 412
Appellee refused to comply with the subpoena and sought
declaratory and injunctive relief in the District Court, claiming
that the subpoena constituted an unlawful search and seizure in
violation of the Fourth Amendment. Appellants counterclaimed for
enforcement of the subpoena. The District Court concluded that the
actions of appellants in issuing the administrative subpoena
"unquestionably comport with the provisions of the Fair Labor
Standards Act, as amended, 29 U.S.C. § 201,
et seq." App.
A to Juris.Statement 6a. Relying on our decision in
Marshall v.
Barlow's, Inc., 436 U. S. 307
(1978), however, the District Court held that the applicable
provisions of the FLSA violate the Fourth Amendment insofar as they
authorize the Secretary of Labor to issue an administrative
subpoena without previously having obtained a judicial warrant. In
Barlow's, this Court declared unconstitutional the
provisions of the Occupational Safety and Health Act of 1970 (OSHA)
which authorized inspectors to enter an employer's premises without
a warrant to conduct inspections of work areas. The District Court
rejected appellants' arguments that
Barlow's is not
dispositive of the issue here by stating:
"It is reasonable to conclude that the exigencies of an entry
upon commercial premises for the purpose of conducting a safety and
health inspection designed to protect the personal wellbeing of
employees supply more compelling bases for proceeding without a
warrant than the circumstances presented here, where entry is
sought for the purpose of determining compliance with wage and hour
regulations. The reasoning of the Supreme Court in
Barlow's applies with equal -- if not greater -- force in
the instant situation."
"In sum, I hold that the Secretary of Labor may not proceed to
enter upon the premises of Lone Steer, Inc., for the purpose of
inspecting its records under SECTION 11 of the Fair Labor Standards
Act without first having
Page 464 U. S. 413
obtained a valid warrant."
App. A to Juris.Statement 8a. [
Footnote 3]
We think that the District Court undertook to decide a case not
before it when it held that appellants may not "enter upon the
premises" of appellee to inspect its records without first having
obtained a warrant. The only "entry" upon appellee's premises by
appellants, so far as the record discloses, is that of Godes on
February 2, 1982, when he and Gerald Hill entered the motel and
restaurant to attempt to conduct an investigation. The stipulation
of facts entered into by the parties, App. 11-17, and incorporated
into the opinion of the District Court, App. A to Juris.Statement
2a-8a, describe what happened next:
"They asked for Ms. White and were told she was not available,
but expected shortly. They were offered some coffee, and waited in
the lobby area. After 20-30 minutes, when Ms. White had not
appeared, Mr. Godes served an Administrative Subpoena Duces Tecum
on employee Karen Arnold."
App. 15.
An entry into the public lobby of a motel and restaurant for the
purpose of serving an administrative subpoena is scarcely the sort
of governmental act which is forbidden by the Fourth Amendment. The
administrative subpoena itself did not authorize either entry or
inspection of appellee's premises; it merely directed appellee to
produce relevant wage and hour records at appellants' regional
office some 25 miles away.
Page 464 U. S. 414
The governmental actions which required antecedent
administrative warrants in
Marshall v. Barlow's, Inc.,
supra, and
Camara v. Municipal Court, 387 U.
S. 523 (1967), are quite different from the governmental
action in this case. In
Barlow's, an OSHA inspector sought
to conduct a search of nonpublic working areas of an electrical and
plumbing installation business. In
Camara, a San Francisco
housing inspector sought to inspect the premises of an apartment
building in that city.
See also See v. City of Seattle,
387 U. S. 541
(1967) (involving a similar search by a fire inspector of
commercial premises). In each case, this Court held that an
administrative warrant was required before such a search could be
conducted without the consent of the owner of the premises.
It is plain to us that those cases turned upon the effort of the
government inspectors to make nonconsensual entries into areas not
open to the public. As we have indicated, no such entry was made by
appellants in this case. Thus, the enforceability of the
administrative subpoena
duces tecum at issue here is
governed not by our decision in
Barlow's, as the District
Court concluded, but rather by our decision in
Oklahoma Press
Publishing Co. v. Walling, 327 U. S. 186
(1946). In
Oklahoma Press, the Court rejected an
employer's claim that the subpoena power conferred upon the
Secretary of Labor by the FLSA violates the Fourth Amendment.
"The short answer to the Fourth Amendment objections is that the
records in these cases present no question of actual search and
seizure, but raise only the question whether orders of court for
the production of specified records have been validly made; and no
sufficient showing appears to justify setting them aside. No
officer or other person has sought to enter petitioners' premises
against their will, to search them, or to seize or examine their
books, records or papers without their assent, otherwise than
pursuant to orders of court authorized by law
Page 464 U. S. 415
and made after adequate opportunity to present objections. . .
."
Id. at
327 U. S. 195
(footnotes omitted).
We cited
Oklahoma Press with approval in
See v.
City of Seattle, supra, a companion case to
Camara,
and described the constitutional requirements for administrative
subpoenas as follows:
"It is now settled that, when an administrative agency subpoenas
corporate books or records, the Fourth Amendment requires that the
subpoena be sufficiently limited in scope, relevant in purpose, and
specific in directive so that compliance will not be unreasonably
burdensome."
See v. City of Seattle, supra, at
387 U. S. 544
(footnote omitted).
See also United States v. Morton Salt
Co., 338 U. S. 632,
338 U. S.
652-653 (1950).
Thus, although our cases make it clear that the Secretary of
Labor may issue an administrative subpoena without a warrant, they
nonetheless provide protection for a subpoenaed employer by
allowing him to question the reasonableness of the subpoena, before
suffering any penalties for refusing to comply with it, by raising
objections in an action in district court.
See v. City of
Seattle, supra, at
387 U. S.
544-545;
Oklahoma Press, supra, at
327 U. S.
208-209. Our holding here, which simply reaffirms our
holding in
Oklahoma Press, in no way leaves an employer
defenseless against an unreasonably burdensome administrative
subpoena requiring the production of documents. We hold only that
the defenses available to an employer do not include the right to
insist upon a judicial warrant as a condition precedent to a valid
administrative subpoena.
Appellee insists that
"[t]he official inspection procedure used by the appellants
reveal[s] that the use of the administrative subpoena is
inextricably intertwined with the entry process,"
Brief for Appellee 11, and states that it is appellants'
Page 464 U. S. 416
established policy to seek entry inspections by expressly
relying on its inspection authority under § 11 of the FLSA.
Id. at 12. We need only observe that no nonconsensual
entry into protected premises was involved in this case.
The judgment of the District Court is accordingly Reversed.
[
Footnote 1]
Section 11(a), as set forth in 29 U.S.C. § 211(a), provides:
"The Administrator or his designated representatives may
investigate and gather data regarding the wages, hours, and other
conditions and practices of employment in any industry subject to
this chapter, and may enter and inspect such places and such
records (and make such transcriptions thereof), question such
employees, and investigate such facts, conditions, practices, or
matters as he may deem necessary or appropriate to determine
whether any person has violated any provision of this chapter, or
which may aid in the enforcement of the provisions of this chapter.
Except as provided in section 212 of this title and in subsection
(b) of this section, the Administrator shall utilize the bureaus
and divisions of the Department of Labor for all the investigations
and inspections necessary under this section. Except as provided in
section 212 of this title, the Administrator shall bring all
actions under section 217 of this title to restrain violations of
this chapter."
Although § 11(a) grants investigatory authority specifically to
the Wage and Hour Administrator, pursuant to Reorg. Plan No. 6 of
1950, 3 CFR 1004 (1949-1953 comp.), 64 Stat. 1263, 5 U.S.C.App. p.
743, the functions of all officers of the Department of Labor,
including the Wage and Hour Administrator, are transferred to the
Secretary of Labor, who may in turn delegate those functions.
[
Footnote 2]
Section 9 of the FLSA provides that, for the purpose of any
hearing or investigation under the provisions of the Act, § 9 of
the Federal Trade Commission Act of 1914, 38 Stat. 722, as amended,
15 U.S.C. § 49, is made applicable "to the jurisdiction, powers,
and duties of the Administrator, the Secretary of Labor and the
industry committees." Section 9 of the Federal Trade Commission Act
of 1914, as set forth in 15 U.S.C. § 49, provides in pertinent
part:
"[T]he Commission, or its duly authorized agent or agents, shall
at all reasonable times have access to, for the purpose of
examination, and the right to copy any documentary evidence of any
person, partnership, or corporation being investigated or proceeded
against; and the Commission shall have power to require by subpoena
the attendance and testimony of witnesses and the production of all
such documentary evidence relating to any matter under
investigation. Any member of the Commission may sign subpoenas, and
members and examiners of the Commission may administer oaths and
affirmations, examine witnesses, and receive evidence."
"Such attendance of witnesses, and the production of such
documentary evidence, may be required from any place in the United
States, at any designated place of hearing. And in case of
disobedience to a subpoena, the Commission may invoke the aid of
any court of the United States in requiring the attendance and
testimony of witnesses and the production of documentary
evidence."
"Any of the district courts of the United States within the
jurisdiction of which such inquiry is carried on may, in case of
contumacy or refusal to obey a subpoena issued to any person,
partnership, or corporation issue an order requiring such person,
partnership, or corporation to appear before the Commission, or to
produce documentary evidence if so ordered, or to give evidence
touching the matter in question; and any failure to obey such order
of the court may be punished by such court as a contempt
thereof."
[
Footnote 3]
Because the District Court's order seemed only to bar "entry"
onto appellee's premises, appellants filed a motion to alter or
amend the judgment, arguing that the District Court's order did
"not address the relief sought by the Secretary." App. A to
Juris.Statement 15a. They sought to amend the District Court's
order so as to compel appellee to produce documents at appellants'
Bismarck office, emphasizing that compliance with such an order
would not require an "entry" onto appellee's premises. The District
Court denied the motion without opinion.
Id. at
13a-14a.