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Supreme Court Has Employment Cases Still to Decide

Posted by Frank Steinberg | Feb 11, 2010 | 0 Comments

Lurking under the snowbanks of Capitol Hill, hard by the Supreme Court building, are briefs in three yet-to-be-decided employment law cases.  We imagine that the Court will get to them around the time of the Spring thaw.  Here's a brief synopsis.  Links are to the merits briefs, to the extent that they are available online.

City of Ontario v. Quon looks to be the decision with the most blockbuster potential.  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-members 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.  If this one goes against the NLRB, it could be a logistical nightmare.

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.

Our guess is that right now the Justices are more concerned with staying warm than worrying about employment law cases.  When we have more information on their status, we will let you know.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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