Supreme Court Rules on 2-Member Labor Board and Workplace Privacy

[Two labor and employment decisions were released by the U.S. Supreme Court this past week. In the first, City of Ontario v. Quon, the Court unanimously held (with Scalia concurring separately) that the government employer's search of employee text messages was reasonable under the Fourth Amendment. Unlike private employers, public employers are constrained (somewhat) by the Fourth Amendment's restrictions on searches and seizures in the workplace. In this case, the city got a private company to release the full text messages of police officers because of their overuse of the texting plan. Several messages were inappropriate and resulted in employee discipline. Based on these particular facts, the Court found the search lawful, though it declined to articulate broader standards for public employer searches, especially of new electronic media. More analysis found here and here.

In the second case, New Process Steel v. NLRB, the Court resolved the circuit split regarding whether the National Labor Relations Board could lawfully act with a two-member quorum because the three vacancies on the board had gone unfilled for so long. A 5-4 majority (Stevens surprisingly joining 4 conservatives) rejected the Board's argument, and held that the NLRA required 3 members to act. The hundreds of decisions issued by the two-member board will probably have to be re-reviewed, though one hopes this could be expedited now that two of the vacancies have been filled by President Obama. Board decisions can take a long time even extra without this delay, often to the detriment of workers and unions seeking to organize and bargain. More analysis is here and here.