employee has received and understands the employer’s policy, including that the employer has the right to monitor such communications. Surveillance and Creating an Impression of Surveillance. Employers may also be liable for an unfair labor practice under Section 8(a)(1) of the NLRA for engaging in the surveillance of, or creating an impression of surveillance of, union activity. In Magna International, Inc. , 7-CA-43093(1), 2001 NLRB LEXIS 134 (Mar. 9, 2001), for example, an administrative law judge held that it was a violation of Section 8(a)(1) of the NLRA for a supervisor to tell an employee that he liked a picture of her the day after the photo was posted to a union blog, because this suggested to the employee that her union activities were being monitored. Employers faced with organizing activity should be mindful of this complicated and often surprising body of the labor law. Additionally, roughly a dozen states, including New Jersey in just this past year, have passed laws protecting an employee’s location. These laws require employers provide written notice to employees prior to using a tracking device in or on a vehicle for the purpose of tracking the employee or the employee’s vehicle. Special Concerns for Public Employers. In addition to the above privacy laws, public employers are also subject to the Fourth Amendment of the United States Constitution. The Fourth Amendment protects public employees from unreasonable searches and seizures, and this prohibition extends to electronic information. In 2010, the United States Supreme Court decided the case of City of Ontario v. Quon , 130 S. Ct. 2619 (2010), a case that raised the question of whether law enforcement employees had a reasonable expectation of privacy in text messages sent on employer provided devices. In Quon , the employer had a written policy allowing inspection of messages, but in practice did not regularly monitor messages. Although the Supreme Court declined to find that the employees had a reasonable expectation of privacy in the messages, the court held that the search was reasonable under the Fourth Amendment because the search was motivated by a legitimate work-related purpose and was not excessive in scope. Public employers must be mindful of this additional constitutional responsibility. 71
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