53 U. Louisville L. Rev. 433 (2015)
Employee Electronic Communications in a Boundaryless World
This Article accepts that American employers will, to some degree, monitor their employees’ communications. It also considers the “dual-use” nature of communications services and devices—i.e., for both work and personal uses—to sometimes be boundaryless, where the distinction between work and personal use is sometimes lost or, at a minimum, blurred. The reality is that employers frequently discipline and discharge employees based on their electronic communications. This Article examines the boundaries (pun intended) within which employers can access and act upon employees’ private communications. Part II reviews the NLRB’s earlier decisions regarding employers’ abilities to limit use of their internal electronic communications systems. Part III examines the NLRB’s most recent decision regarding employees’ statutory rights to use their employers’ e-mail systems for “nonwork” communications. Part IV argues that developing technologies require a reexamination of employer practices with respect to employees’ personal communications; it explores various ways in which employers can find themselves liable for accessing those personal communications, as well as procedures to avoid such liabilities. This Article concludes with final arguments that the NLRB and employers’ focus just on e-mail use is outdated and archaic.