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Supreme Court Issues Workplace Privacy and Labor Board Rulings

Author: Hera S. Arsen, Ph.D. (Torrance)

Published Date: June 17, 2010

Supreme Court Issues Workplace Privacy and Labor Board Rulings

On June 17, the U.S. Supreme Court issued two key decisions for employers. In the first ruling, City of Ontario v. Quon, the high court held that a city's search of an employee's text messages was reasonable. In the second decision, New Process Steel, L.P. v. NLRB, the Court ruled that the National Labor Relations Act requires that a delegee group have at least three members to exercise the delegated authority of the National Labor Relations Board (NLRB).

City of Ontario v. Quon

With Justice Anthony Kennedy writing a unanimously-supported opinion, the U.S. Supreme Court held that a police department's search of an officer's text messages was reasonable and did not violate the officer's Fourth Amendment rights. The Court was reluctant to tackle the issue of whether the officer had a reasonable expectation of privacy – in light of "[r]apid changes in the dynamics of communication and information transmission." Assuming that the officer did have a reasonable expectation of privacy in his text messages, the Court found that the search was motivated by a legitimate work-related purpose and was not excessive in scope. Thus, the Court held that the city's review of the officer's text messages was reasonable. City of Ontario v. Quon, No. 08-1332, U.S. Supreme Court (June 17, 2010). For a detailed discussion of the facts and Court's holding, click here.

According to Keith Watts, Co-Managing Shareholder in Ogletree Deakins' Orange County office: "The Court's decision is all about common sense. Certainly, while government employers can rejoice in the Court's decision upholding the government's ability to undertake 'reasonable' searches, the next question is: what's the practical application to the private employer? Future employee workplace privacy cases will no doubt look to this precedent and give it substantial weight.

"Private employers should carefully consider the Court's analysis and common sense approach. They should apply it to their own circumstances, keeping in mind that where an employee has a legitimate, reasonable expectation of privacy, a private employer's intrusion for work-related purposes, as well as for investigations of work-related misconduct, should, in the Court's words 'be judged by the standard of reasonableness under all the circumstances.'

"That being said, a private employer must take into consideration any additional privacy protections that individual states have to offer, balancing state privacy guarantees against the reasonableness of the private employer's search and its purpose."

New Process Steel, L.P. v. NLRB

In yet another important decision for employers, the U.S. Supreme Court has held that a two-member Board was improperly delegated the authority to decide more than 500 decisions over the past two years. In a 5-4 decision, the Court held that Section 3(b) of the National Labor Relations Act authorizes the Board to delegate its powers only to a "group of three or more members." According to the majority opinion authored by Justice John Paul Stevens, this clause should be read to require the Board to "maintain" a membership of three in order for the delegation to remain valid. Thus, the Court concluded once the third member left the Board when his appointment expired, the remaining two members lost all authority to issue orders.

The dissent, authored by Justice Anthony Kennedy, noted that under the Court's holding, "the Board was unauthorized to resolve the more than 500 cases it addressed during those 26 months in the course of carrying out its responsibility." Justice Kennedy wrote that the text of the statute and its analysis does not support this holding: "[I]n my view, the objectives of the statute ... must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is." New Process Steel, L.P. v. NLRB, No. 08-1457, U.S. Supreme Court (June 18, 2010).

According to Harold P. Coxson, Jr., a shareholder in Ogletree Deakins' Washington, D.C. office: "The NLRB is supposed to be constituted of five members at all times, with only one seat being vacated and eligible to be filled annually. The fact that Congress failed for three years to affirm new Board members is more evidence of how political these appointments have become. It is incredible that seats on the NLRB cannot be filled in an orderly fashion.

"That said, the decision is correct in accord with the statute and past precedent. It will now be up to the Board to deal again with hundreds of cases that were decided by the two Board members who were improperly delegated the authority to make decisions. The sad fact is that employees, employers and unions are the victims of this delay in resolution of their cases.

"Of course, the Court's decision comes at a particularly bad time for the Board given the shortened recess-appointed terms for two of the current Board members and the expiration of another Board member's term this August. The delay of having to reconsider hundreds of previously-decided cases will put a crimp in the Board's desire to advance a new and aggressive labor law 'reform' agenda."

Additional Information

Should you have any questions about the impact of these rulings, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the June 17, 2010 issue of the National eAuthority.

Hera S. Arsen, Ph.D.  (Torrance)

Hera S. Arsen, Ph.D.
Hera S. Arsen, J.D., Ph.D. is Senior Marketing Counsel overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera...