We should all know that company property is not for personal use. For that matter, our model employee handbook (a great resource for any small business) suggests that companies should maintain a written policy stating that “[c]ompany property, such as equipment, vehicles, telephones, computers, and software, is not for private use. These devices are to be used strictly for company business…”
But there may be a caveat if the National Labor Relations Board gets its way. In recent years NLRB has issued rulings that employers must allow employees to use company computers and email systems to discuss labor issues—including in conducting unionization campaigns. This supposed rule raises serious constitutional issues, as it violates fundamental property rights protected by the Fifth Amendment (i.e., the right to exclude the public from using private property without permission), and undermines essential protections covered by the First Amendment. Yet as we argued in a recent amicus filing before the Ninth Circuit Federal Court of Appeals, in Purple Communications v. NLRB, this rule also creates serious problems for employers.
NLRB says that its ruling only authorizes employees to use company emails for non-work-related communications during non-working-hours. But the reality is that it is impossible for employers to enforce such a rule. Indeed, there is nothing stopping employees from covertly drafting and reading emails throughout their work-day. This means that employers will have no means to ensure workplace productivity. And even if employees are abiding by a rule confining these non-work emails to non-working hours, the reality is that employees will have to wade through non-work emails to get to work done during working hours. Simply put, NLRB’s rule is inherently unworkable.
Perhaps even more concerning is the fact that employers may potentially be liable for messages employees send in non-work-related email threads. So for all of these reasons we believe that its unfair to force employers to allow email traffic on non-work-related matters. And our hope is that, at the end of the day, we can either force NLRB to change course or strike-down this errant rule. Of course, the later option may be most helpful in the long run because it would set an important precedent that NLRB lacks authority to authorize the commandeering of company property.