Employee Electronic Communications in a Boundaryless World

Abstract

In 2007, the National Labor Relations Board decided that an employer could maintain an email communications policy that prohibits nonwork-related messages, even if those messages involved communications otherwise protected under the National Labor Relations Act. In December 2014, the National Labor Relations Board reversed this holding, but in doing so, limited its decision to just workplace email. This article argues that such a prescription is outdated and archaic in light of today’s modern workplace filled with communications devices and systems that blur the distinction between work and personal life. This article explains that such a prescription can cause employees to turn to personal communications options to discuss concerns that don’t necessarily involve work itself, but do involve the workplace; an environment that, ironically, can sometimes provide more legal protection for employees and greater potential legal liabilities for employers compared to if those same “nonwork-related” messages were communicated through the employer’s communications system.

Note: This manuscript incorporates the NLRB's December 2014 decision in Purple Communications, overruling Register-Guard (which had allowed employers to restrict employees' use of their email systems for Section 7 communications).

Keywords: labor law, privacy, Stored Communications Act, employee electronic communications, Register-Guard, Purple Communications