[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]
Last month, the U.S. Supreme Court rendered two employment law decisions. Neither provides much guidance for employers. However, there are a few takeaways.
In New Process Steel v. NLRB, the court invalidated all National Labor Relations Board cases decided by a panel of two board members. The NLRB may have up to five panel members, but the board only had two members for the past two years.
How many cases does this affect? More than 500. And, unless otherwise resolved, the NLRB — now comprised of four members — will need to re-hear each one of these cases. The former two-member panel was equally weighted, with one member viewed as pro-labor and the other as pro-management. They only issued decisions where they could reach a consensus based on existing board precedent. Now, although the NLRB still has an even number of panel members, three of the four are considered union friendly. So, don't be surprised when the ultimate outcome changes in many of the same 500 cases.
In Ontario v. Quon, the court held that a public employer's reasonable search of an employee's text messages on an employer-supplied pager does not violate the Fourth Amendment to the U.S. Constitution.
Private employers got no guidance regarding their legal right to search employee text messages on employer-supplied devices such as cell phones and BlackBerrys. Instead, the court warned, "The dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve."
In the meantime, it makes sense for an employer to have explicit “computer use” and “social media” policies in which the employer reserves the right to monitor employee use.
Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.
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