Labor & Employment Law Legal Update

Supreme Court Rejects Employee Privacy Claims and Invalidates Hundreds of Decisions Issued by the National Labor Relations Board

By:  Daniel B. Gilmore

Last Thursday, June 17, the United States Supreme Court issued two much-anticipated decisions with potentially far-reaching consequences on the workplace.

Privacy of Employee Text Messages

The right of privacy for public employees who send text messages while on the job was the issue before the Court in the case of City of Ontario v. Quon.  More specifically, the question was whether the 4th Amendment’s ban on "unreasonable searches" limited the City’s ability to read messages sent by its officers using a paging system provided by the City.

Sergeant Quon sued the police chief and the City after he learned that the chief had read text messages sent on Quon’s City-issued pager.  The vast majority of the messages reviewed by the chief were personal and some of which were sexually explicit.  The chief had decided to read some of the messages of the department’s officers after becoming concerned that officers were using their text pagers primarily for personal messages.

The Ninth Circuit Court of Appeals found in favor of Quon, holding that he had a reasonable expectation of privacy in his text messages.  The Ninth Circuit noted that Quon’s commanding officer had told him he could use the pager for personal messages, so long as he paid the cost.

The Supreme Court disagreed, however, and concluded that a public employee has at most "a limited privacy expectation" when using a pager provided by the City.  Justice Kennedy noted that "[b]ecause the search [by the police chief] was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable."

Although this decision applies directly to public employees who work for federal, state and local governments, past decisions on the right of privacy have also influenced decisions addressing the rights of employees in the private sector.  Employers, whether public or private, should clearly advise employees in writing that they do not have a right of privacy when communicating with devices provided by the employer.  So long as any subsequent monitoring is conducted consistently and for legitimate business-related reasons, an employer should be able to take appropriate action based upon the search results.

Authority of Short-handed National Labor Relations Board

In the case of New Process Steel, LP v. NLRB, the Court addressed the authority of the National Labor Relations Board ("Board") to issue decisions during a period in which three of its five seats were vacant.  At stake were about 600 opinions issued by the NLRB between January 2008 and March 2010.

Citing the requirements of the National Labor Relations Act ("Act"), the Court held that the Board must have a valid quorum of at least three of its statutory five members in order to have authority to issue opinions involving alleged unfair labor practices committed by private sector employers and unions.  As a result, the Court invalidated the opinions issued by the Board while it operated with only two members. Writing for the Court, Justice Stevens concluded, "If Congress wishes to allow the Board to decide cases with only two members, it can easily do so.  But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than be swept aside in the face of admittedly difficult circumstances."

According to the press release issued by the Board, it is expected that the five other cases currently before the Court raising the same challenge to the Board’s authority, as well as the 69 that are pending before the Courts of Appeals, will be returned to the now-four member Board so it can decide "the appropriate means for further considering and resolving them."  It remains to be seen how the Board will choose to address the hundreds of other invalid opinions, each having resolved disputed workplace-related issues of varying impact on other employers.

If you have any questions, please contact Dan Gilmore or a member of our Labor & Employment Law Group.