The U.S. Supreme Court issued decisions in two important labor & employment law cases this morning. Because the cases are limited to some labor law issues and public employers, the impact on private employers may not be immediately felt. But the decisions are notable nonetheless.
First, the court issued a 5-4 decision in New Process Steel v. NLRB (download here) . The court held that the NLRB needs at least three members (of the typical five appointed members) to act on any decision. What’s the big deal of that? Well, for the last half of the Bush administration, the NLRB was acting with only two members, not three (much less five). All of those 500-plus decisions are now invalidated and will need to be reheard. It’ll be interesting if any cases change but this is a huge mess for the time being.
Second, the court issued a 9-0 decision (with Scalia dissenting in part) in Ontario v. Quon (download here). Although some had though that the court would issue an expansive ruling on the ability of all employers to monitor electronic messages, like text messages (a result that I did not foresee), the court issued a much more limited ruling today limited to the public employer context under the Fourth Amendment.
Jon Hyman, of the Ohio Employer’s Law Blog, nails the analysis of this case and cites the key portion of the opinion that leaves the broader issues very much still up in the air.
Recall that Quon involved a police department’s review of the content of its employee’s sexually explicit text messages sent via his Department-issued pager. The Court held that the search of Quon’s text messages was reasonable and there was no violation of his 4th Amendment rights. Importantly, the court cautioned that employers not read too much into the management-side victory in this case:
Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency…. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications…. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve….
Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.
In other words: the status quo reigns, employers are left with the no more guidance on these emerging issues than before, and the best practice is still a reasonable technology policy that plainly spells out employees’ expectations concerning personal, non-work related use of employer-owned equipment.
So what are the takeaways for employers overall?
- If you had an NLRB case decided in the last 2 years, those board decisions are invalid and there’s going to be some work for lawyers to get those decisions re-heard.
- If you’re a public employer, review your policies regarding the monitoring of electronic messages and ensure that it complies with the court’s suggestions here.
- If you’re a private employer, the same rules (and uncertainties) still exist. Nevertheless, compliance with at least the Connecticut Electronic Monitoring Act is still a must.