Thursday, June 17, 2010

Text Message Search and 2-Member NLRB Results Today

The Supreme Court issued not one but two employment law opinions today.

Ontario v. Quon
First, the Court issued an opinon in City of Ontario v. Quon (.pdf). The Court held that a government employer's search of an employee's text messages was reasonable under the circumstances. The text messages were on an employer-issued pager and the employer's policy explicitly told employees that they had no expectation of privacy. The search did not violate the Fourth Amendment because it was for a "legitimate work-related purpose" (determining whether the department needed to increase the character limit on its service plan) and not excessive in scope.

Important to note: "The Court does not resolve the parties’ disagreement over Quon’s privacy expectation." Ummm, that was the most interesting part! Oh well, I suppose caution is a virtue in the Court (sometimes).

Previous coverage on Lawffice Space: Text Message Privacy Hits SCOTUS, and Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery.

New Process Steel v. NLRB
The Supreme Court also issued its opinion in New Process Steel v. NLRB (.pdf). In the simplest terms: 3-Member NLRB Good; 2-Member NLRB Bad. Unfortunately, the NLRB had been (sort of) operating with two members for quite awhile. Per employment lawyer Jon Hyman via Twitter, "26 months of NLRB decisions down the tubes."

Interesting to note: The majority was comprised of Justices Roberts, Alito, Scalia, Thomas... and Stevens! Justice Stevens actually authored the opinion and was the swing vote, siding with the "conservative bloc." Meanwhile, Kennedy (the usual "swing vote") dissented with Breyer, Ginsburg, and Sotomayor

Previous Coverage on Lawffice Space: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

That leaves two employment law cases left. After I've had time to digest the opinions, I will likely (no guarantees) post some more analysis.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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