June 2010 Archives

June 20, 2010

Government Employer May Read Employee Text Messages, Says Supreme Court

The Supreme Court has decided its first case on workplace electronic monitoring, City of Ontario, California v. Quon. The case involved Jeff Quon, a member of the city's SWAT team, who -- along with the rest of the team -- was issued a pager with texting capabilities. The city had a written policy informing employees that their email and Internet use was not private, and told employees that same policy applied to the pagers. However, employees were told that their usage wouldn't be monitored as long as they paid any fees imposed for going over the character limit each month.

After Quon exceeded the limit several times, the city decided to audit his messages for the past two months to determine whether the city should raise its character limit. The audit revealed that Quon had used his pager extensively for personal messages, including sexually explicit messages. Quon and several people with whom he had texted sued, alleging invasion of privacy. (You can find more details on the facts of the case in my earlier post, here.)

The U.S. Court of Appeal for the Ninth Circuit found in Quon's favor. It found that Quon had a reasonable expectation of privacy in his text messages, based on his supervisor's statements that those messages would not be read. It also found that the city had a reasonable justification for searching. In the end, the Court found that the city should have used less intrusive means of determining whether to raise its character limit, such as asking Quon to perform the audit himself or warning Quon that his messages would be audited going forward.

The U.S. Supreme Court disagreed, finding that the city's monitoring was justified and that Quon had no legal claim that he had been subjected to an unreasonable "search" under the Fourth Amendment of the Constitution. The outcome isn't surprising: Courts have largely upheld the rights of employers to monitor employee communications, in the public and private sector. The Ninth Circuit's decision was the outlier in this regard.

What was more interesting, however, was the Court's discussion of how the law should treat technology. Justice Kennedy's opinion for the majority says:

The Court must proceed with care when considering the whole concept of privacy expectations on communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Cell phone and text communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That may strengthen the case for an expectation of privacy.

This section of the opinion led to a separate opinion by Justice Scalia, who didn't much care for the notion that the Court should exercise caution by making a limited decision simply because technology is evolving. In his words, "The-times-they-are-a-changin' is a feeble excuse for disregard of duty." He nonetheless agreed with the outcome of the case.

Because Quon involved a public employer, it doesn't apply directly to the private sector, which is not bound by the Fourth Amendment. However, courts have generally followed similar principles in analyzing these cases against private employers. One clear takeaway from the Quon case is, in the words of Justice Kennedy: "[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated." (And now a word from the shameless commerce division: If you need help putting together clear communications policies, pick up a copy of my book, Smart Policies for Workplace Technologies.) 


June 18, 2010

Supreme Court Says Two-Member NLRB Had No Authority to Issue Decisions

The Supreme Court has ruled that the National Labor Relations Board (NLRB), the administrative body that decides representation and unfair labor practices cases, had no authority to issue decisions while it had only two members. For more than two years, the NLRB (which ordinarily has five members) was down to two members, one Republican and one Democrat. These two members decided about 600 cases in which they could agree on the outcome; if the panel split, no decision was issued.

The dispute before the Supreme Court was over the interpretation of a provision of the National Labor Relations Act that gives the NLRB the authority to delegate its powers to a quorum of at least three members -- and, that once such a three-member group has been designated to handle certain issues, two of its members may constitute a quorum as to those issues. Confused? So were the federal Courts of Appeal, which split as to whether this provision allowed the NLRB to decide cases with only two members or required at least three members. (See my previous post for a few more details on this dispute.)

In the Supreme Court case, New Process Steel v. National Labor Relations Board, five Justices found that the provision about two members acting was effective only if everyone in the three-member quorum was still on the Board. So, for example, if a three-member quorum had properly been delegated the right to hear cases, and one of the members had to recuse him- or herself from hearing a particular case (say, because of a conflict of interest), the remaining two members could issue a decision -- but only if the third member was still on the Board. Once the Board had only two members, they were no longer authorized to issue decisions.

But they did anyway. Which raises the question: What about those 600 or so decisions? Can the party that lost go back and reopen the case? If so, where should those cases be heard -- by the now four-member NLRB? In federal court? And what of the parties who have had to act in accordance with the rulings of the now-declared illegitimate two-member "rump" by, for example, recognizing a union or losing an unfair labor practice case? 

Lots of questions, and not so many answers just yet. There's a nice analysis of the issues over at SCOTUSBLOG. The post points out that the NLRB has issued a statement saying that it expects all pending appeals of two-member Board decisions to be remanded to the Board, so it can "further consider" and resolve them. However, it's still unclear how the many more cases that are now done and dusted -- either because they were never appealed or because the appeal has been decided -- will be dealt with.