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Legal Report January 2013


INVESTIGATIONS. The National Labor Relations Board (NLRB) has issued a decision that could affect how companies conduct internal investigations. The NLRB ruled that issuing a blanket instruction to employees that they should not discuss an investigation with coworkers violates federal labor law. To request confidentiality in an investigation, a company must show that the need for secrecy outweighs the employee’s right to discuss the conditions of his or her workplace.

In the case, James Navarro worked for Banner Health System as a sterile technician. Navarro’s job included sterilizing the equipment that would be used for surgeries. Upon arriving to work one Friday, Navarro learned that there was no hot water or steam pressure available to sterilize the equipment. Navarro’s boss told him to use another sterilizing machine that used low temperatures and hydrogen peroxide to clean nonsurgical equipment. Navarro researched whether such procedures could be used to safely sterilize equipment that would be used in surgery. Navarro could not find evidence that this procedure was safe. When Navarro reported his findings, he was told to sterilize the equipment using water boiled in the coffee pot in the staff break room. Navarro refused to comply on the grounds that he thought it was dangerous.

After learning that the equipment was never sterilized, Navarro’s supervisor contacted human resources and requested that disciplinary measures be taken against Navarro. After discussing the matter with human resources, the supervisor agreed to give Navarro a nondisciplinary reprimand, known as a “coaching.”

During these discussions, Navarro was reminded of the company’s confidentiality agreement, which prohibited him from discussing the incident, or any investigation into the incident, with his coworkers.

Navarro filed an unfair labor practice charge again Banner Health, claiming that he should not have been penalized for refusing to sterilize the equipment. Navarro also claimed that Banner’s confidentiality agreement violated the law because it curtailed his ability to discuss the terms and conditions of his employment.

The NLRB found that Banner acted appropriately in disciplining Navarro. The board noted that Navarro’s insubordination was at issue, not any protected activity.

However, the NLRB found that Banner’s confidentiality agreement with regard to investigations violated that law. Instead, ruled the NLRB, companies should issue restrictions on a case-by-case basis and only in certain circumstances. Conditions that would justify confidentiality would include when a witness needed protection, when the company feared that evidence would be destroyed or tampered with, or when witnesses might collude to cover up a crime. (Banner Health System, National Labor Relations Board, No. 28-CA-023438, 2012)

DRUG DOGS. The U.S. Supreme Court will hear two cases involving the use of dogs to sniff out narcotics. In the cases, both of which originate in Florida, the Court will determine when dogs can be used to ferret out drugs inside a private residence and what credentials are necessary to prove that a drug dog is properly trained.

In Florida v. Jardines, the Florida Supreme Court ruled that authorities violated the Fourth Amendment when it used a drug dog to sniff the exterior of a person’s house. In the case, police got a tip that marijuana was being grown inside Joelis Jardines’ home. Based on this tip alone, and without a warrant, police used a drug dog to sniff at Jardines’ front door. The dog alerted, indicating the presence of marijuana. Police entered the residence and found marijuana plants. Attorneys for Jardines argued that the search violated the Fourth Amendment and that a warrant is necessary to enter a private residence, even if a dog detects the presence of narcotics.

“Further,” wrote the Florida court, “if government agents can conduct a dog ‘sniff test’ at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites over-bearing and harassing conduct. Accordingly, we conclude that a ‘sniff test,’ such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a ‘search’ within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.” The police appealed the case to the U.S. Supreme Court.

In Florida v. Harris, the Florida Supreme Court ruled that the constitutionality of using drug sniffing dogs to search a private vehicle depends on the dog’s reliability as a detector. In the case, a police officer conducted a traffic stop after determining that Clayton Harris was driving with expired tags. During the stop, Harris appeared twitchy and anxious. The officer suspected that Harris might be under the influence of methamphetamines. The officer asked to search Harris’ truck. Harris refused.

The officer deployed Aldo, a drug sniffing dog. Aldo alerted on the driver’s side door of the truck. When officers searched the truck, they found 200 pseudoephedrine pills, eight boxes of matches, and muriatic acid—all precursor ingredients for creating methamphetamine.

Harris was arrested. At trial, Harris argued that the search of his truck was illegal because the alert of the dog did not constitute a basis for the search. On appeal, the Florida Supreme Court agreed. The court found that the state had not established the dog’s credentials and that a dog’s reliability may be based on a variety of factors.

For example, the court noted that Aldo was trained to detect cannabis, cocaine, ecstasy, heroin, and methamphetamine but was not trained to detect alcohol or pseudoephedrine. Similarly, field training, false-alert rate, and handler training could also be considered when determining whether Aldo was reliable.

The court ruled: “In summary, where adequate and comprehensive records are maintained on a particular narcotics dog, and include results of controlled alerts made in training, as well as actual alerts in the field, the dog’s reliability could be sufficiently established either through the re - cords themselves or testimony from the dog’s trainer who maintained the records. In this respect, the dog’s alert is analogous to information provided by a reliable informant, and his alert without more could establish probable cause.” The state appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court heard separate arguments in the cases in October. The Court will issue its decisions before the end of the term in summer 2013. (Florida v. Jardines, Florida Supreme Court, 2011 and Florida v. Harris, Florida Supreme Court, 2001)


WORKPLACE PRIVACY. The Supreme Court of Canada has ruled that employees have an expectation of privacy even when working on computer equipment owned by their employer.

The case involves Richard Cole, a high school teacher who was assigned a laptop computer by his employers. During routine maintenance, a school technician discovered a folder on the laptop that contained nude and partially nude photos of an underage female student.

The technician alerted the principal and copied the photos to a disc. The principal copied the files to a second disc. Both discs, along with the computer, were handed over to local police. The police viewed the files and created a mirror image of the laptop’s hard drive. Cole was brought up on criminal charges.

The trial judge excluded all of the computer evidence, ruling that it had been obtained illegally, without Cole’s permission and without a warrant.

The Court of Appeal for Ontario overturned the trial court decision, allowing into evidence the disc of photographs obtained by the principal but excluding all evidence held by the police. The police, ruled the court, should have obtained a warrant before searching the computer. The prosecution appealed the decision to the Supreme Court of Canada.

The high court upheld the appellate decision, ruling that employees had a reduced expectation of privacy in the workplace but that the extent of that privacy must be determined on a case-by-case basis. In the written opinion, the court noted: “While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely.”

Even workplace computers can contain personal information that employees can reasonably expect will remain private, ruled the court. In this case, the court noted that following appropriate procedure would have allowed the police to access the information legally. “The school board was legally entitled to inform the police of its discovery of contraband on the laptop. This would doubtless have permitted the police to obtain a warrant to search the computer for contraband,” wrote the court. (R. v. Cole, Supreme Court of Canada, No. SCC 53, 2012)


New Jersey
SOCIAL MEDIA. A bill (A.B. 2878) pending in New Jersey has been approved by the New Jersey Assembly and was amended and then passed by the New Jersey Senate. The assembly version of the law would prohibit employers from requesting social media passwords from current or prospective employees. As amended, the senate version includes language that would allow employers to implement and enforce an electronic communications policy. Under the senate version, the law would not apply to any social media established by a company and used for business purposes.

The two versions of A.B. 2878 must now be reconciled before being presented to the governor.

PRIVACY. Governor Jerry Brown has vetoed a bill (S.B. 1434) that would have required law enforcement to obtain a search warrant before accessing location tracking information from electronic devices. Exemptions had been provided in the bill for emergency situations, such as a missing child or when the request was made by the owner of the device.

This column should not be construed as legal or legislative advice.