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Washington Journal of Law, Technology & Arts

Abstract

In 2007, the National Labor Relations Board adopted two clear rules concerning employee use of employer-provided email in Guard Publishing Co.: First, the Board held that employers were not required to allow employees to use employer-provided email to engage in protected activity pursuant to section 7 of the National Labor Relations Act; second, the Board held that if an employer allowed employees to use its email system for non-work purposes, it could still lawfully adopt and enforce nondiscriminatory rules that restricted otherwise protected activity. In 2014, the Board reversed this precedent in Purple Communications, Inc., and held that employees have a presumptive right to use an employer’s email system to engage in protected activity on non-working time if they are provided access to email for work-related purposes. This article analyzes the conflicting guidance provided by Guard Publishing Co. and Purple Communications, Inc. against the broader context of prior precedent concerning employer property rights. By highlighting numerous unanswered questions left open by the Board’s analysis in Purple Communications, Inc., this article advocates for the Board to reevaluate its position on employee use of company technology resources, including email, and to adopt a new framework that can readily and predictably be applied to new and developing technologies.

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