First Circuit Dismisses Verizon Union Employees' Privacy Claims Based On Federal Labor Law Pre-Emption
Beginning in late 2008, Verizon New England, Inc. (VNE) began requiring its field technicians to carry company-issued cell phones, containing a global positioning system (GPS) during work. Prior to adopting this policy, VNE issued its technicians pagers so that their supervisors could communicate with them. The technician would then have to locate a phone to return the call. Obviously, in emergency situations, this was a less than optimum arrangement. As a result, VNE, relying on the management rights provision in the collective bargaining agreement between it and the technicians unit, adopted the disputed policy.
In Haggins v. Verizon New England, Inc., the plaintiffs contended that by requiring them to carry these phones, VNE violated (1) their privacy rights under Article 14 of the Declaration of Rights in the Massachusetts Constitution and Mass. Gen. Laws ch. 214, § 1B, and (2) their state-law rights as alleged third-party beneficiaries of a contract between VNE and Verizon Wireless, which they say required VNE to receive consent from its employees when it instituted the phone policy. As to the second allegation, the court quickly concluded that there was no evidence in the record that VNE and Verizon Wireless intended to confer third party beneficiary status on the plaintiffs.
Focusing on the state law privacy claims, the court likewise wasted little time in concluding that the plaintiffs needed to pursue any remedy they may have under grievance and arbitration provisions of the collective bargaining agreement. Specifically, in order to evaluate the plaintiffs' state law claims, the court needed to balance "the employer's legitimate interest in determining the employees' effectiveness in their jobs ... against the seriousness of the intrusion on the employees' privacy." To do so, the court noted, would require it to consider the parties' prior history relating to employee monitoring and their particular industry practices, which necessarily requires analysis of the CBA's Management Rights clause, which incorporates past practices that give content to the employees' reasonable privacy expectation.
The First Circuit's decision in Haggins is not particularly surprising. Nevertheless, it emphasizes for unionized employers that state law privacy claims brought by union members are subject to dismissal when resolution of their claims would require interpretation of the collective bargaining agreement.