As I have opined before, with the Democratic majority running for the hills, and the Administration keen on spending whatever capital it has left on health care, we're unlikley to see any employment law legislation this year. But that doesn't mean that other branches haven't been busy. Here's a brief synopsis of cases pending before the Supremes, some of which I have discussed previously.
City of Ontario v. Quon looks to be the decision with the most blockbuster potential, although there is certainly latitude to bring it well within precedent. The question presented is whether employees have a reasonable expectation of privacy in personal text messages transmitted over employer-supplied devices, against a background of a formal no-privacy policy in conflict with a practice that sanctioned personal use. Although this case involves public employees -- police officers -- it may have implications for all employers, both public and private.
New Process Steel v. NLRB raises an issue of considerable import to labor lawyers and their clients. The National Labor Relations Board has an authorized strength of five members, and three is generally considered to be a quorum to decide cases. For the past couple of years, however, the NLRB has had only two sitting members. During that time they have decided around 400 cases. The question before the court is whether those two-member decisions were valid. It's not a clear-cut question, and there are good arguments on both sides. The three circuit courts to have considered the question have split. A ruling against the Board could cause a thermonuclear legal mess.
Lewis v. City of Chicago presents the Court with another firefighter qualification test case, like last year's Ricci v. DeStefano. Lewis deals with the more abstract question of whether the 300-day limit to file a claim with the EEOC runs from the date the test results were announced or the date that hires were made based upon those test results.
We're likely to hear more about these cases in the spring.
